How often should I review my Will? This is perhaps one of the most common questions that I get asked. It seems like a fairly simple question, but the answer is actually more complicated, and really comes down to “it depends.”
Although Wills are drafted with the intention that they are somewhat flexible (by covering different scenarios with “back-up” provisions) and may in some situations remain unchanged for quite some time, you should not consider your Will to be one of those “set it, and forget it” sort of things.
My general recommendation to clients is that they make a reminder for themselves to review their Wills at least every 2 or 3 years.
There are certain events that should cause you to review your Will in order to determine if anything needs to be updated, such as if an Executor or beneficiary of your estate has moved to another jurisdiction, has suffered an illness, or has passed away.
Changes in the nature of relationships with persons named in your Will should also be considered. In several instances I have had a client tell me that for years they have not been in contact with a certain friend or family member that they previously appointed as an Executor of their Will or Guardian of their children. Also, if you experience a separation or divorce, one of the first things you should do is see an estate planning lawyer to review your Will.
You should also consider the potential implications of changes in the financial, psychological, and emotional wellbeing of the person you have appointed as Executor of your Will and Trustee of your estate. It may be that the person you selected as Executor in your last Will has gone through some stressful events in their own lives, and therefore the potential burden of placing upon that person the responsibility of administering your estate may be more than she or he can handle.
If you have children under the age of 18, your Will should contain a provision regarding appointment of a guardian and custodian with respect to your minor children. If in your Will you named a wife and husband pair as your guardians, and that couple goes through a separation or divorce, this is something that you should re-visit with your estate planning lawyer as soon as possible.
Wills may also contain specific gifts of things, such as family heirlooms, land, or money to certain people. If your Will contains such provisions, but you decide at a later date that you want to change whom receives such things upon your passing, it is prudent to make such changes in a new Will with your estate planning lawyer. Too often I see older Wills with hand-written changes to such provisions in the columns of the document, or on scrap pieces of paper. Such notes can create confusion and disputes amongst beneficiaries, not to mention that hand-written changes in many scenarios are not legally binding. Also, if you have already given away the thing that you have gifted in your Will, or if you have already gifted the sum of money that was included to be gifted in your Will, you should consider updating your Will, so that there is not confusion or duplication of gifts upon passing.
If you think that there is something that you need to update in your Will, don’t put it off.
Call your estate planning lawyer as soon as possible to arrange an appointment to review your Will and to discuss the changes that you have in mind. Around the Winter and March Break holiday seasons, I often receive calls from panicked clients, leaving on a flight in the next day or two, who want to make changes to their Wills… I usually find out they have been considering these changes for months or years, but just never got around to making an appointment to review their Will. This unfortunately does not leave a suitable amount of time to give your Will changes the proper consideration, and in the worst case scenario your lawyer may be too busy to squeeze you in on such short notice, possibly leaving you with your “out-of-date” Will for the time being.
If you do have a Will that you feel is still relevant, but the lawyer who prepared it for you has retired, you should at the very least make an effort to locate the original Will and determine which lawyer now holds this document in safekeeping for you. This is often an good time to re-evaluate your Will, and to introduce yourself to the lawyer who now holds your Will. A large portion of the Wills that I prepare are for clients who want to review with me a Will that was prepared by a different lawyer, who has now retired from the practice of law.
*The comments in this article are not meant as legal opinions and readers are cautioned not to act on information provided without seeking specific legal advice with respect to their particular situation.
This article was written by:
Jason P. Mallory, of Mallory Law in Blenheim,
is the recipient of the Margaret E. Rintoul Award in Estate Planning