Why Hire a Lawyer to Draft Your Will?
End of life and disability are delicate and difficult topics for all involved. Estate planning and planning for potential future incapacitation enables you to retain control over your life, your person and your assets once you are no longer able to make decisions for yourself.
Having a current Will is the only way to ensure that the assets that you have spent your working life accumulating will be distributed according to your wishes upon your death. Your lawyer can assist you in identifying and addressing scenarios you may not have considered, and will draft the wording necessary to make sure your intentions are accurately reflected.
If You Already Have a Will
Even if you have a valid Will, it is recommended that you review and, if necessary, update your Will and other estate planning tools on a regular basis in order to ensure that they still reflect your current situation and wishes. Additionally, new estate planning laws were introduced at the end of March 2014 which may affect how your current Will is interpreted if it was prepared before that date. Speaking with your lawyer will help you to decide whether or not to revise your Will in light of this new legislation.
Consulting with your legal and accounting professionals in identifying and implementing your estate planning objectives can maximize the portion of your estate which will go to your loved ones, and avoid creating unnecessary tax and other financial consequences.
Varying A Will
If a Will does not make “adequate provision” for a Will-maker’s spouse or children, section 60 of the Wills, Estates and Succession Act allows the court to vary the Will so that it is “just and equitable in the circumstances”.
What is “adequate provision” and “just and equitable in the circumstances”, though, is very subjective and is ultimately up to the judge hearing the case. This ability to subjectively alter the terms of a Will means that if a Will is contested the control over the distribution of assets is shifted from the Will-maker to the judge.
Litigation is very costly. If a Will is contested under the Wills, Estates and Succession Act , there will ultimately be less money available to all beneficiaries as a significant portion will likely be spent on legal fees. Litigation is also very stressful for all parties involved. A Will-maker’s intention may be to favour a certain beneficiary by leaving him or her the bulk of the estate. However, if the Will is contested as a result of this unequal distribution, the “favoured” beneficiary will then be put through the stress of court proceedings during what is very likely already an emotional time.
The best way to prevent this is to draft a Will which, if the assets are unequally distributed among spouse and children, clearly sets out the reasoning for doing so and attempts to be as fair as possible in the circumstances.
Minor Beneficiaries – Guardians and Trust Monies
If you are responsible for minor children, having a valid Will is the only way to ensure that you control who will be responsible for their care and maintenance in the event of your death.
Specific wording is also required if you wish someone other than the government to have control over money or assets left to minor beneficiaries. In the absence of this wording, all funds left to a minor beneficiary must be forwarded to the Public Guardian and Trustee (“PGT”) for administration until the beneficiary reaches the age of majority.
The PGT charges an initial fee for receiving these funds, as well as an ongoing fee for administering the funds. In addition to the costs associated with administration by the PGT, the guardian of the minor beneficiary would have to apply to the PGT for money to use for the care and maintenance of minor beneficiaries.