Considerations for Divorcees Drafting Wills

Considerations for Divorcees Drafting Wills

In Alberta, divorce automatically revokes any provision in your will that relates to your ex-spouse. As most married people include their spouse as both a beneficiary and an executor in their will, it is vital to update the will after a divorce. Because this automatic revocation does not take effect until your divorce order is issued, you might consider updating your will even earlier, as soon as you separate.

Our Edmonton wills and estates lawyers can provide you with further advice on these considerations for divorcees drafting wills.

What Happens if You Fail to Update Your Will?

It is recommended that you update your will any time there is a major change in your life, because your will may no longer reflect your wishes and intentions for the distribution of your estate. You may also have committed to something in a separation agreement that requires you to make a change to your will.

The Wills and Succession Act ensures that upon divorce, any provision in your will that names your ex-spouse as a beneficiary is revoked. Some people name their spouse's family members as contingent beneficiaries or back-up executors in case their named executor is unable to act. After your divorce, you may wish to change these provisions, depending on your continued relationship with your in-laws.

It is also possible that you still want your ex-spouse to act as your executor, or to be a beneficiary of your will. If so, you must update your will and include a provision that clearly expresses your intention to include your ex-spouse. You can only do this by updating your will after your divorce is granted.

People often move to a new town after a divorce. If you have moved since your divorce, you may want to examine any provisions in your will dealing with funeral arrangements, to be sure they are still appropriate.

Making Provisions for Minor Children

A will generally expresses a parent's wishes for the guardianship of any minor children in the event both parents are killed or are otherwise unable to continue providing care. The provisions that you and your spouse agreed upon during your relationship may no longer be appropriate after your divorce.

If you and your spouse continue to manage an RESP for your children, you may want to ensure that there is a plan in place for the distribution of the RESP if you or your spouse dies prior to its use.

How to Update a Will

You cannot update a will by making handwritten changes on the original document. You can update a will by either:

  • - Writing a new will and signing it in front of witnesses, or
  • - Writing a codicil, which is a separate document that changes only part of your original will.

A codicil is generally used only if you are making a minor change. Rewriting your will in its entirety is likely necessary after a divorce.

When you update your will, it is a good idea to ensure that named beneficiaries to insurance policies, RRSPs and TFSAs are updated as well.

Contact our Edmonton Wills and Estates Lawyers Today For a Consultation

There can be many details to consider in the writing and rewriting of wills, particularly following a divorce. For more information on these and other concerns you might be facing in a legal separation, contact our Edmonton wills and estates lawyers today!

*Please note, the information in this article does not constitute legal advice, but is intended to offer a general overview on the subject of wills and estates law in Alberta. Please contact a lawyer for legal advice.

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