February 22, 2016 MasterEditor

Wills and Other Related Issues in Family Law

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As family lawyers we are often asked, “Do I need a Will?”  Usually the answer is yes but not always.  For a parent with dependent children the answer is always yes and the reason is simple. 

In a Will you can accomplish the following:

1. You can name the person or persons who will administer your estate in the event of your death.  This person will often be your spouse or partner and for someone who is a single parent or separated from the other parent of their child, this person may be a sibling or any other family member or a trusted friend.

2. You can set out in the Will the manner in which your estate will be divided.  This may be entirely to your spouse or partially to your spouse and the balance to your children.  Again, for a single parent or separated parent your entire estate, if you choose, can be left to your children.

3. You can nominate a guardian or guardians for any minor children you have at the time of your death.  In the event of the death of both parents, this nomination is critical to ensure that a guardian is available to look after minor children in those circumstances.

The legal fee to prepare a Will can be relatively modest.  The reason for this is that often all that is required is a ‘Simple Will’ or for spouses often referred to as a ‘Reciprocal Will’.  In a Reciprocal Will the spouses name each other as the trustee (administrator) of their Will and in the event of the death of  both spouses, an alternate trustee or trustees.  Subject to specific gifts or bequests, the spouses leave their estates to each other and in the event of death occurring at the same time, such as in an accident, they leave their joint estates to their children.  The spouses would also name an alternate guardian or guardians of their children in the event of their deaths. 

Under the current legislation a Will continues in effect even after a subsequent marriage.  This is in contrast to the previous legislation, in which a Will was revoked in its entirety by a subsequent marriage unless the Will expressly stated that it was made in contemplation of that marriage.  Accordingly, it is important to obtain legal advice upon marriage to determine if your existing Will is still appropriate and if not, to revoke it and put into place a new Will.

Also under the currently legislation, when spouses separate, unless a Will specifically states otherwise, a bequest to a spouse or an appointment of a spouse as a trustee are all revoked. So again it may be important for a Will to be reviewed upon separation or divorce to ensure that the appropriate person or persons are named as trustees and beneficiaries of an estate.

We are often asked about the effect of a death of a spouse or parent as it relates to family law issues.  For example, many people wrongly believe that an obligation to pay spousal or child support will automatically end upon the death of the payor.  Agreements made between spouses, such as separation agreements, often contain terms dealing with obligations that will continue after the death of one of the parties.  An agreement may provide specific bequests to a surviving spouse or parent and it may oblige the estate to continue to pay support to the surviving spouse or children. 

In the absence of specific provisions in a separation agreement, it may be accurate to say that the obligation to pay support died with the person obliged to pay it.  However, this has been modified to some extent by the new Family Law Act as it provides the court with authority to make a support order binding on the payor’s estate.

In the recent case called P.K. v. J.R. 2014 BCSC 932, the Court made an order that the husband would pay spousal and child support to the wife and in the event of his death, the child support would continue until the earlier of the child’s completion of post-secondary education or 25th birthday and spousal support until the wife’s 65th birthday, at which time it was presumed she would be in receipt of pension income.

Even if there is no written agreement or court order that specifically contemplates payments continuing after the death of the payor, there is a provision in the Family Law Act that allows for a recipient of support to apply to the court after the death of the payor for an order that the support obligation continues to bind the payor’s estate.  Arrears of support are always a debt of an estate and as such there is no requirement for any specific agreement or order to bind the estate.

The Family Law Act also provides that any guardian of a child can appoint a successor in the event of the appointing guardian’s death.  The appointment can be made either in a Will or in a prescribed form as set out under the Family Law Act Regulations.  The appointment by the appointing guardian should be able to take effect even if there is another surviving guardian, for example, the other parent who is also a guardian.  However, a guardian may not appoint a successor with greater parental responsibilities than the appointing guardian holds.

Where no appointment or agreement as to guardianship has been made before a guardian dies, succession depends on the application of a provision in the Family Law Act. If the parents lived together before separation, they remain guardians after separation and subject to any agreement or order that says otherwise, the surviving guardian has all the parental responsibilities with respect to the child.   

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