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In Canada, it is crucial for an immigrant person, including family members, to adapt to the practice of estate planning and the importance of drafting a will for the safeguard and protection of their loved ones, but along with that planning they should also know that there are some common mistakes that can have significant consequences for them after their death. This usually happens when there is not enough information on the subject or if, instead of seeking specialized legal advice, the person decides to act on their own or with the help of third parties who do not know the Canadian laws, which, by the way, are complex.
In this Immiland blog on Canadian estate law, I want to share with you the six (6) most common mistakes in drafting a will and how you can avoid them to ensure that your wishes are carried out as you intended them to be in the document. Join me until the end of the article to find out what they are and how to avoid them. Let's get started!
The most common and frequent mistakes people make in their wills are these six:
Imagine that throughout your life you got married and had several children, or divorced and remarried, etc., time went by and the will you made for the only time does not contemplate new loved ones in your family or, even more complicated, contemplates people with whom there were serious breakups, then at the time of your death everything was written according to your past, but that was not your new will. Well, this is one of the most common mistakes of immigrant families in Canada: they forget to update the will as personal and family circumstances change!
Recommendation: You should update your attestation whenever there are changes such as marriages, divorces, births, deaths or major acquisitions of property that may significantly affect the distribution of your assets. This is done periodically so that you can make sure during your lifetime that these changes have been considered to ensure that your document remains valid in Canada.
Another common mistake new immigrants make is not properly appointing an executor (executor).
The executor is the person responsible for administering your estate as provided in your will, i.e., someone you trust and care about. Many times the person does not designate someone they trust to carry out their wishes and, contrary to what they would have wanted, the consequences are disputes among the heirs or an inefficient administration of their assets, without a doubt, this can become very uncomfortable.
Recommendation: choose someone capable and willing to assume this responsibility in a timely manner.
Let's move on to a third error that occurs frequently because it is seen as a very obvious formal requirement, but it is not: I am referring to your own signature, for example.
The validity of a will depends on complying with certain formal requirements, such as a proper signature, without new strokes or changes in features, etc., and the presence of competent witnesses with the mental capacity for this purpose.
Although it may seem obvious, these two requirements are fundamental and not following them can cause the will to be challenged or invalidated by the court.
Recommendation: verify that your signature is the same as the one in your legal identification documents, take care of the position you adopt when signing so that your signature looks like the original, practice several times before using it in the document and choose the most suitable witnesses to validate your will.
When in doubt about the formal requirements for your will, I invite you to consult with a specialized lawyer to ensure that your will complies with all local legal requirements and is valid under Canadian law. Schedule a consultation.
Drafting ambiguous or vague provisions in your will can result in misunderstandings and disputes among your own loved ones who are beneficiaries. If the person leaving a will handles ideas and provisions that are inconsistent or leave room for various interpretations, i.e., is ambiguous or vague in what he or she wants, the will may not be understood, runs the risk of being invalidated, and distribution could be left to the judicial law of the Canadian province involved.
Recommendation: remember to be clear and specific when describing the distribution of your assets, for example, who will be the major beneficiaries, who will inherit your house or shares, etc., think also of any other provisions you wish to include and seek support from a lawyer who knows Canadian law well, he will know how to draft clear clauses that reflect your intentions accurately.
Forgetting the tax liabilities of your testamentary dispositions can lead to an unnecessary tax burden for your heirs. It is important to understand how inherited assets will be taxed and seek legal strategies to minimize the tax impact, such as using available exemptions and deductions.
If you have minor children or pets, you should be sure to include specific provisions for their care and welfare in your will. This may involve the appointment of legal guardians for your children and the allocation of funds for their support.
Their most vulnerable and careless loved ones may be left in a very difficult situation, not to mention the emotional impact of death itself.
Recommendation: the protection of your children or pets should be properly planned, with specialized legal advice and in time!
We are a full-service, specialized firm for new immigrants to Canada and we are here to support and inform. Remember to avoid these common mistakes so that you secure a will that fulfills your wishes and effectively protects your loved ones after your passing. At Immiland Canada, we offer expert advice on drafting and updating wills, ensuring that your estate is protected in a timely and appropriate manner.
If you are considering making your will or need help correcting errors in an existing one, do not hesitate to contact us. Immiland Law Professional Corporation has a team ready to help you plan for a secure and peaceful future for you and your family.
With love,
Immiland Canada
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