People writing their wills are generally planning for an event in the distant future, and it can be difficult to specifically plan for every possibility. There are many important will considerations that should find their way into a solid estate plan, including fairly providing for your loved ones, providing clear direction on how your wishes should be fulfilled, minimizing expenses and tax repercussions and planning for payment of any debts you leave behind.
However, there is also the sentimental side to consider. It is simple to say that you want your estate divided equally among your children, but when emotions are involved this simple division can become a very painful process. It is important to carefully consider the words you use in your will when it comes to dividing your belongings, as those words are all your loved ones will have to interpret your wishes.
There are many cases of families fighting over sentimental or valuable items. The root of the problem is that while many items of value can be sold and the proceeds can be divided, often families fight over possession of an item for its sentimental value, and you can’t simply cut it in two. The item may be a beloved painting, an autographed Wayne Gretzky jersey, or even a broken down old car. Quite often families argue because they have different opinions of what the deceased intended to happen with the item. Perhaps they recall a casual conversation about who should get an old family wedding ring, or perhaps an object represented a specific special bond between a deceased parent and one child.
When our loved ones can’t agree on the division of our belongings, they must turn to a careful interpretation of our will. The words we have used then become very powerful. There are rules on how wills should be interpreted. For example, words like “personal effects” and “household effects” have specific legal meanings. In the Supreme Court of British Columbia case Moyls Estate (Re), 2010 BCSC 1150, the family fought for two years over a painting that had hung in the family home for 42 years. In that case, one person had been given the household effects, and another the personal effects. The Court found that the painting was a household effect, and it was eventually distributed after what must have been a long and painful process for all involved.
You won’t be around to step in and break up the fight, but you can provide a mechanism for how these decisions should be made. Perhaps one person will have the final say, or if there is a disagreement, perhaps the children could take alternating selections of the items. It may seem that the simplest solution is to set out in the will which item will be gifted to which child, but this can have unintended effects. When we make specific gifts in a will, those gifts must be distributed before the residue of the estate, meaning everything that is left over can be divided. Sometimes, as a result of tax issues or the debts of an estate, one child gets a large gift and nothing is left for the other. In other cases the gift no longer exists because it has been sold or destroyed, and the child who was left a gift ends up getting nothing.
Having a will is always a good idea. Discussing your wishes with your family is also a good idea. However, things change, families evolve, and no one should rely on a vaguely remembered conversation from 10 years ago. Having a carefully considered will that is clearly and properly drafted is the best idea; who knows what treasures you will leave behind.
Contact our Will and Estates department for more information.The information provided above is for educational purposes only. This information is not intended to replace the advice of a lawyer or address specific situations. Your personal situation should be discussed with a lawyer. If you have any questions or concerns, contact a legal professional. [jetpack-related-posts]