Your Divorce Is Finally Complete, but What About Your Will?
May 2023 - 3 min read
Any time you experience a significant life change or substantial change in your assets, you should review your Will, Personal Directive, and Enduring Power of Attorney to ensure that they accurately reflect your current wishes. This will prevent future disputes and simplify matters for your personal representatives and beneficiaries after your death.
After enduring an arduous, emotional, and time-consuming divorce process, you are finally done, but don’t forget about your Will!
Although family law lawyers are typically diligent about advising their clients to change their estate planning documents, this matter can easily be overlooked, especially following a lengthy divorce.
When spouses create Wills, they usually name each other as personal representatives (executors) and leave each other their respective estates. However, after a divorce, divorcees typically no longer want their ex-spouses to have anything to do with or to receive any part of their estates, except as may be required by their divorce settlements.
In 2010, the Alberta Wills and Succession Act introduced new legislative provisions so that, in most circumstances, if a deceased person was divorced prior to death, the deceased’s Will is interpreted as though the ex-spouse had died before the testator. This way, the ex-spouse does not end up being the divorcee’s personal representative and does not inherit the deceased’s estate. This makes sense and sounds simple, but it can result in unexpected problems.
For example, applying these provisions of the Act can result in removing your ex-spouse as a guardian of your child under the Alberta Family Law Act if the ex-spouse is not otherwise entitled to guardianship. But do you have an adequate alternate guardian appointed in your Will?
It is important to consider whether the provisions in your Will still make sense following a divorce. For example:
- Your assets may be considerably reduced following your divorce settlement and some of the gifts or donations you’d planned may no longer be appropriate or viable,
- Even though the provisions of the Alberta Wills and Succession Act remove your ex-spouse from your Will, you may have appointed or given a gift to one of your ex-spouse’s family members and your relationship with that person may have also broken down,
- Now that your ex-spouse can no longer be appointed as your personal representative, you may not have a sufficient number of alternate individuals named and could end up without a personal representative even though you have a Will,
- You may no longer be able to afford some of the gifts in your Will, given child or spousal support obligations you now have, and that your estate may continue to have following your death, and
- Even though you are divorced, you may still wish to include your ex-spouse as a personal representative or beneficiary in your Will, and if so, this intention must be specifically stated.
Ending an adult interdependent relationship (common law relationship) can cause the same issues as the Alberta Wills and Successions Act provisions also apply to common law partners. If you have appointed your ex-common law partner as a personal representative, trustee, or guardian, or have left any part of your estate to that person, you should also be considering whether the provisions of your Will are still appropriate.
Making changes to your Will to correct any of the problems listed above or to fix any other issues resulting from your divorce or separation from your common law partner can prevent future disputes regarding your estate and simplify matters for your personal representatives and beneficiaries after your death.
Any time you experience a significant life change such as a divorce, marriage or re-marriage, the birth of a child, the death of someone named in your Will, or a substantial change in your assets, it is wise to review your Will, Personal Directive, and Enduring Power of Attorney to ensure that they accurately reflect your wishes in light of that change.
For more information on estate planning or to retain a lawyer to assist you with reviewing and updating your Will, Personal Directive, and Enduring Power of Attorney, contact Kristin Yarish or any other lawyer from Field Law’s Wills, Estates + Trusts group.