David Harris-Lowe, Associate, Family Law.
When you separate one of the things you should add to your bucket list is when to get a new Will. The real question is when and it may be sooner than you think depending the following and other considerations:
a) Are you married or were you living in a common law relationship?
b) Are you able to disentangle joint assets and debts before a separation agreement is signed or a divorce order is made?
c) Do you want or need to disentangle your assets and debts immediately?
d) Are you healthy?
e) Do you already have a will and are you satisfied with who your trustee is and who the beneficiaries are?
Common law spouses who separate do not have automatic entitlements to the other’s estate, but married spouses do, even if they’ve separated. This is important because if you are separated, but not divorced, then your existing will is still valid and your spouse may be entitled to receive your property pursuant to your will and act as your trustee or your attorney. Whether married or common law, your spouse may still receive benefits as a beneficiary to RRSPs, life insurance and pension entitlements.
If you do not have a will drafted, then your married spouse still qualifies as a spouse under the Succession Law Reform Act and will likely receive your entire estate (if there are no children) and will likely receive a preferential share of $200,000.00 (if you have children) and the balance of the value of your estate will be shared with your children. Once you get a divorce, only the parts of the parts of a will made prior to the divorce that give powers or benefits to your former spouse are revoked.
It is important to get a proper separation agreement and follow through, such as getting a new will, powers of attorney and possibly changing beneficiary designations.
However, you should talk to your lawyer about making changes for beneficiaries and signing a new will even before you complete a separation agreement.