Changes to what happens if a group of beneficiaries die at the same time
Under the new rules, if an entire group or “class” of beneficiaries, such as your children, die at the
same time, the gift will be divided equally among them all and essentially paid to their estates,
unless your Will stipulates otherwise. Accordingly, if you want your grandchildren to inherit
rather than, say, your children’s spouses, it remains vital to specify this intention in your Will;
otherwise, your children’s own Wills or the intestacy laws will apply, and your grandchildren may
not receive as big a share of your estate.
Registered assets
Until WESA, only life insurance policies and other life insurance products could name a trustee
as a beneficiary. Now, owners of registered plans can do the same thing through either a sepa-
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24 CPABC in Focus • July/August 2015
rate trust document or through a special
clause added to the Will, which means these
assets can easily get the contingency planning,
inclusion in trusts, and probate avoidance that
has always been available for life insurance
policies.
Posthumous birth rules codified
In this era of frozen reproductive material, it is
theoretically possible for someone to engender children many years after they themselves
have passed away. The new rules now require
that a surviving spouse advise the court of the
intention to use the reproductive material
within 180 days of the donor’s death, and
that the birth take place within two years of
the deceased’s passing. The old rules did not
address this scenario in detail.
Rules surrounding “undue influence”
changed
The elderly are particularly vulnerable to
manipulation, isolation, and coercion when
writing their Wills. Under the old law, if a
relative alleged that another beneficiary (such
as a caregiver) had exerted undue influence
over the deceased, the burden of proof fell
on the relative. Under the new law, however,
the tables have turned: Now, if such concerns
are raised, the onus shifts to the beneficiary
of the gift, who must prove that they did not
exert undue influence on the deceased. How
this shall be established remains to be determined, although it’s likely that evidence from
the lawyer who prepared the Will will play a
key role.
Will requirements relaxed
Until WESA, a gift to a beneficiary was rendered void if said beneficiary also acted as a
witness to the Will in question. Fortunately,
there are now provisions in place that could
enable people who are both witnesses and
beneficiaries to inherit, along with other
provisions to correct Will mistakes. Unfortunately, however, it is now possible to argue
that a document or electronic communication
executed in a non-traditional manner is a
valid Will.
Most lawyers believe that this last change
will create far more problems than it will fix.
For example, imagine a scenario in which an
individual doesn’t get around to signing the
draft copy of their Will before passing away.