When Should You Revisit Your Estate Planning Documents?

When we think about estate planning, a Will is the first document that comes to mind. However, when planning your estate, it is essential to include two other documents, an Enduring Power of Attorney and a Personal Directive.

An Enduring Power of Attorney (“EPA”) and a Personal Directive (“PD”) are the documents that empower someone else to make decisions for you once you have lost the capacity to do so for yourself. The EPA names an “Attorney” to make decisions related to your assets and financial matters. The PD designates an “Agent” to make decisions related to your personal and health matters. Both documents give a lot of power to your decision-maker, so it should be someone you trust. Further, you should also speak to your Attorney and Agent prior to finalizing your EPA and PD to ensure they agree to take on the role.

Once you die, your EPA and PD lose effect, and your Will comes into effect. A Will is a legal document that states the testator’s intentions for the distribution of assets and wealth after death. Furthermore, a testator may also appoint guardians for minor children, establish trusts for their benefit, and designate beneficiaries for certain investment accounts such as RRSPs, TFSAs, RRIFs, or life insurance benefits.

A Will may be amended or redrafted at any time, as long as you have testamentary capacity. This means that the testator understands in a general way:

(1)  the nature and extent of their property,

(2)  the persons who are the natural objects of their bounty,

(3)  the testamentary provisions they are making,

(4)  be capable of appreciating these factors in relation to each other, and

(5)  forming an orderly desire as to the disposition of their property.[1]

The person(s) you name as your Executor(s) will be responsible for your assets and remains. Your Executor will also be responsible for gathering, administering, and distributing your estate. Being an Executor is time-consuming and comes with legal responsibilities (and liability), so it is essential to ensure the person(s) you name as Executor(s) understand(s) and agree(s) to take on the role.

We have previously discussed that dying without a Will leads to inconvenience[2]; however, it must be noted that keeping your estate planning documents accurate and up to date is as important as having those documents in place. Therefore, you should revisit your estate planning documents any time there is a material change in your circumstances, such as:

  • Marriage
  • Adult Interdependent relationships (common-law)[3]
  • Divorce, separation, or cessation of cohabitation
  • Having children
  • Retirement (which can include sale of business)
  • Changes in your financial circumstances
  • Obtaining or dispensing of significant property
  • Death of a family member (e.g., beneficiary, Executor, or guardian)
  • Passage of time (every 3 to 5 years)

Getting married or forming an adult interdependent relationship with someone, as well as divorcing or separating may change your wishes as to whom should inherit your estate. Similarly, having children (biological or adoptive) will almost always have similar effects. In addition, retiring, selling a business, or changes in your financial circumstances may result in a dramatic shift in the distribution of your assets upon your passing. Moreover, the death of a family member named in your Will as beneficiary, Executor, or guardian will require modifications to your current estate planning documents. Finally, your wishes regarding the outcome of your estate may change with the simple passage of time.

It must be clear that writing directly on your Will after it has been signed does not legally change the document. The only way to update a Will is by making a codicil to change it or making a new Will. A codicil is a separate legal document made the same way as a Will. A codicil is usually made when you have minor changes to your Will, such as adding or removing a beneficiary or Executor; or changing the amounts of a specific bequest or gift.

We not only recommend that all individuals have estate planning documents in place but also ensure these documents are up to date. Any of our McLennan Ross Estates & Trusts team members would be happy to discuss your estate planning needs with you.

[1] Campbell v Ensminger, 2022 ABQB 330 at para 96.

[2] Roseman, Lydia, Dying Without a Will – Intestacy Leads to Inconvenience <https://www.mross.com/what-we-think/post/wills-estates-law-blog/dying-without-a-will-intestacy-leads-to-inconvenience>

[3] The legislation considers an Adult Interdependent Relationship to be in place when a couple cohabits for three years, or prepare a written agreement, or have some cohabitation but have children together.