Common mistakes made in a Will and how you may avoid them

Mistakes in your Will may leave the executor of your Will unable to carry out the plan that you had in mind for your family and beneficiaries. Here are some common mistakes made in Will planning and how you can avoid them.

The Will the family made could not have been simpler or more straight-forward . . . or so they thought. The couple was to pass on their estate to their two sons. Time went by and the father died, but there was no need to worry about where their sizable estate would go. However, the mother lived to a ripe old age, even outliving both her sons who both died in their 70s without any heirs.

When the mother finally died in her 90s, where did the hard-earned money, saved over decades and decades, go?

Probably not where the family would have wanted. Without surviving children, the estate could have gone to good friends or charities. But without any living relatives in Canada, a cousin in Eastern Europe who the family had never met and maybe didn’t know even existed, received $1 million.

1. No ‘Plan B’

The error that many people make, is that they forget ‘gift over’ provisions when writing their Will, meaning they don't have a ‘Plan B’ if the testator outlives their beneficiaries.

It’s a cautionary tale for all those who sit down at the kitchen table to write out their Will. Mistakes are made all the time — even by lawyers — and tiny errors can ruin the best-laid plans for passing down your family wealth and heirlooms.

2. Not having a Will

Laima Alberings, a Tax and Estate Planner with TD Wealth, says this is the greatest disservice you can do for people you love. With no Will, your estate is more exposed to potential claims or litigation. If your affairs are complicated or there is dissension in the family, your estate could be dragged through court for years, costing thousands or more in legal fees.

3. Mathematical mistakes

There are many ways people can divide their assets among their beneficiaries and each method may be prone to errors. Simple mathematical mistakes, including dividing assets into dollar figures or percentage points, can result in a protracted court ordeal to get the Will settled if totals don’t tally up. Another option may be to divide assets into shares. For example, if a family had two children, one good friend and three favourite charities to be included in their Will, the parents could distribute their estate by dividing its total value into 100 shares. Then, the parents could decide that the children get 40 shares each, the good friend gets 5 shares and the three charities get 5 shares each. This way, if values change, your beneficiaries will receive the proportions you want.

4. The kids are too young

While you may want your children to inherit, you may not want them to have a huge lump sum when they are young and not yet financially responsible. Including trust provisions for minors in your Will can prevent them from immediately having unrestricted access to their inheritance if you die while your children are still financially immature. The trust provisions can specify that if your beneficiaries inherit at a young age, the assets will be held in trust and dispersed according to the terms of your Will until they attain the age you specify. If you are thinking of establishing a trust, please consult your lawyer and your financial advisor.

5. Choosing an inappropriate executor

Naming the “wrong” executor for your Will can throw off your best intentions either due to personality clashes or a lack of ability. Is your executor older than you? Often unreliable? Too busy with their own affairs? You may wish to look for another executor who is more appropriate or use a corporate executor such as your financial institution. In any case, your Will should be reviewed frequently to verify that whomever you’ve chosen as your executor is still the best choice.

6. Using a lawyer who’s not a Will and estate specialist

Just as you wouldn’t see a dermatologist for chest pains, you should find a lawyer who is knowledgeable about Will and estate planning when you draw up your Will. Often people are happy to look up a lawyer (perhaps the same one who helped them buy a house), but they quickly forget not all lawyers are experts in every field. To draw up a Will, talk to a Will and estate specialist.

7. Not detailing the personal stuff

Alberings recalls a family that fought over mom’s $40 teapot that she used at Sunday dinners. “They were spending thousands of dollars in legal fees fighting over that teapot.” Often personal items are the most passionately fought over because of their sentimental value. With that in mind, it is best to be as specific as possible about who gets what. Consider making a list and describe each item as carefully as possible in a memorandum that you keep with your Will.

8. Cottage complications

Not only does a cottage come with sentimental value, it also comes with costs and taxes. Affairs can get complicated if one child wants the family cottage, one has their own, and another lives too far away to enjoy it. When the cottage is concerned, speak with your children first to gauge interest. Then, be specific about who will inherit, based on who actually wants the cottage, but also who will maintain it and use it.

9. Unrealistic conditions

“If you include conditions in your Will that are hard to enforce, this may cause problems for your executor,” says Alberings. She recalls one client didn’t want a child to inherit if they had a tattoo. Alberings countered that it would be difficult for the executor to verify whether someone had a tattoo somewhere on their body — and nothing would stop them from getting a tattoo the day after the person inherited. The idea was dropped.

10. Being vague

Being too vague in your Will can cause its own share of problems. For example, if you declare in your Will that Kate gets your diamond ring, what happens if you have more than one diamond ring? And did you mean daughter Kate, cousin Katy or Aunt Katherine? Including detailed descriptions of the items, proper names of your beneficiaries, and your relationship to the beneficiary may go a long way to preventing those problems.

Ultimately, Alberings says it important to get your Will done by an experienced professional who is familiar with your affairs. With a proper Will in place, you can specify how your assets are to be distributed and you can have confidence that your intentions will be carried out.