Tag: Will Provisions
Earlier this week, we discussed the effect a well drafted separation agreement has on an individual’s estate plan. But what effect does a divorce have?
In most instances, going through a divorce can be stressful and contentious. As a result, necessary changes to an individual’s estate plan may be overlooked. Fortunately, section 17(2) of the Succession Law Reform Act provides divorced couples with some piece of mind:
“Except when a contrary intention appears by the will, where, after the testator makes a will, his or her marriage is terminated by a judgment absolute of divorce or is declared a nullity,
(a) a devise or bequest of a beneficial interest in property to his or her former spouse;
(b) an appointment of his or her former spouse as executor or trustee; and
(c) the conferring of a general or special power of appointment on his or her former spouse,
are revoked and the will shall be construed as if the former spouse had predeceased the testator.”
While the SLRA provides a divorced spouse’s estate with some protection against honouring unintended gifts after divorce, the termination of a marriage is nonetheless a good time for divorced persons to review their estate plans, especially as joint bank accounts and beneficiary designations do not have the benefit of the remedial provisions of the aforementioned statute.
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Listen to The Investment Accounts.
This week on Hull on Estates and Succession Planning, Ian and Suzana conduct a quick lesson on capital encroachment and discuss the role of investment accounts in the passing of accounts.
Today, Rodney Hull Q.C. gives us some practical advice on dealing with actual interpretation problems …
(1) THE RULE IN BROWNE v. MOODY,  A.C. 635 (P.C). – Direction to pay after a life interest – vesting of interest.
(2) THE CLAUSE – “Income from a trust to a son for life, and on son’s death, the fund to be divided among the daughters and granddaughter of the testatrix in equal shares, with gift over in the event that any of the daughters and the granddaughter predecease the testatrix or the son leaving issue, such issue to take the interest to which the person so dying would have been entitled had she survived the testatrix.”
(3) THE FACTS – The testatrix left a son, three daughters and one granddaughter.
(4) THE QUESTION – What interest do the beneficiaries take and when does the interest arise?
(i) On the death of the testatrix?
(ii) At the date of the Will? or
(iii) At some other time?
(5) WHERE TO START RESEARCH –
(i) Theobald on Wills – page 602 – paragraphs 43 – 26.
(ii) Feeney’s Canadian Law of Wills – paragraphs 17.8 – 17.47.
(iii) Sheard, Hull and Fitzpatrick, Canadian Forms of Wills, page 221.
Although Will provisions can be quite unique, assistance often can be sought from similar provisions in other documents. A review of the case law can therefore be of assistance as well.
We’ll deal with another such provision tomorrow.
All the best – Suzana.