What should you do when parents get a little lazy about drafting or updating a will? Some gentle nudging may be in order. But did you know that how hard you push could actually cause problems down the road? Treva Newton, Tax and Estate Planner with TD Wealth, joins Kim Parlee to talk about what happens when adult children are a little too enthusiastic about helping their parents plan their estate.
Originally recorded in January, 2020
- So what do you do when your parents might be a little stubborn, a little scared, or maybe just a little lazy about drafting or updating their will? Some gentle nudging might be in order. But did you know how hard you push might actually cause problems down the road?
Treva Newton is a Tax and Estate Planner with TD Wealth. And she joins us to talk about adult children who may be a little too enthusiastic about helping their parents with their will. So let's start about, I guess, the theory behind this. Why would you not push?
- So, you can push, but you can't control. So if you're involved in helping your parents get their wills done, if you're taking them to the lawyer and choosing the lawyer, providing instructions to the lawyer, and there for the signing of the will, you're probably going too far. If you do that, you may be taking away your parents' testimentary autonomy. And if somebody challenges the will, it may be declared invalid.
- So you have a case of an example of something that happened. So take us through what happened.
- So there was a widow and she had no will, and she had four children. One of her children took it upon himself to make sure she had a will. So him and his wife, they found the lawyer, they provided instructions to the lawyer, and they were there for the signing of the will. Not only that, he was named as sole executor, power of attorney, and the sole beneficiary of the estate. He also used the power of attorney to transfer a house into his name before she passed away, which is something you really cannot do.
- I was reading some of the details in there as well. And it sounded as if that the son even planned and kept this from the other siblings. Like, was purposefully secretful, I guess is what I'm trying to say.
- Yes, the other kids did not know about this until mom passed away. And they get a copy of the will and they realize that they're not named. So one son took it and tried to have the will declared invalid, based on either undue influence or at least suspicious circumstances for it.
- And it was?
- It was, yes. The court did declare it invalid. And what actually it was interesting in it, they didn't do it through undue influence. They said it took away her testimentary autonomy, because it's easier to prove that than it is to prove undue influence.
- So a pretty extreme example, I think, for people who are listening. You've got someone who actually was trying to force an outcome versus, I think, a lot of people just want to make sure that people are taken care of. But where do you draw the line? Without getting the legalese of it, how do I make sure, when I'm helping someone, that I'm actually getting them to do the right thing?
- Right, so again, you can lead them along to it, but you can't force them to do it. Don't be the one who actually gets a lawyer, provides instruction, is there for the signing. You need to make sure it's actually your parents who are doing those steps. You can, like, encourage, but you can't force.
- And what do you do, though, if you have a parent who is just not open to it, they don't want to do it? I mean, why would they not want to do it?
- So there are some people who are adverse to wills. They may not understand the benefits behind it. They may think they don't have enough assets, and so therefore they don't require a will. Or some people are suspicious that they're going to pass away or something as soon as they get the will. Of course, none of those things are actually true.
So you can encourage. You can educate your parents into doing it. But if they ultimately decide they don't want a will, there's really not much you can do about it.
- And if they do pass without a will, what happens?
- So then there is-- they pass intestate. So it's basically everything is set up by different provinces as to what you receive under an intestacy. In the case that we were talking about, the four children each received an equal share of the estate. So it really depends on what the province is as to what the distribution would be.
- Final question then, how would you ensure that a will is, in fact, valid?
- So first of all, don't wait until your parents are sick to do the will, or on their deathbeds. You want to do this planning beforehand. You don't want to wait to the last minute to do it.
Secondly, don't be overly involved in it, controlling of it. Make sure that it's actually your parents who are giving the instructions to the lawyer.
And third, choose a proper estate lawyer. You need to have a proper lawyer who will actually know how to answer certain questions, know what to look for to make sure that things will be valid.
- Treva, thanks very much.
- You're welcome.