It’s reasonable if you thought they were with all the pomp and circumstance around their execution.
They’re not carved on stone tablets but are sometimes printed on a heavier paper stock.
Great care is taken for the will-maker to initial every page and sign the last, with each witness then following suit.
There is often a fancy looking cover page and a special blue corner stapled into place.
The carefully signed will is then stored in the lawyer’s locked and fire-proofed safe, if not taken by the will maker to put into a safe deposit box.
But the very next day, you can scrawl “This is my last will. I leave everything to my illicit lover, Trixie Tinglebottom” on a napkin, your signature witnessed by two folks who are not Trixie, and all that pomp and circumstance is erased.
No lawyer or notary involvement. No special paper, fancy cover page or special blue corner. No multiple pages of legalese.
And you needn’t notify anyone. Not even your spouse (legal or common-law).
You can keep your new will as confidential as your tryst with Ms. Tinglebottom.
The pomp and circumstance will remains untouched at the lawyer’s office or in the safe deposit box, no one the wiser that it’s not worth the fancy paper it’s printed on.
To ensure your surreptitious will is uncovered on your death, you can register it with British Columbia’s Wills Registry. Don’t worry, nobody without your authorization can search that registry to discover your secret until after you’ve died.
Extra steps will have to be taken for Ms. Tinglebottom to benefit from your estate if you die before your spouse. You’ve likely structured your affairs so that all your assets will end up in your spouse’s hands without your will even kicking in.
You’ve likely named your spouse as beneficiary of investments held in registered tax umbrellas (RRSP/RRIF, TFSA, etc.). Those assets pass directly to the named beneficiary regardless what your will says, passing outside your estate.
The same with life insurance.
You need to take the extra step of confidentially changing your beneficiary designations to name Ms. Tinglebottom.
Then there’s your home, which is likely registered in joint tenancy with your spouse so that the survivor of the two of you will become the sole owner after one of you dies without any tax or probate fees.
You will need to take the extra step of “severing” that joint tenancy ownership, which can be done unilaterally, without telling your spouse. It’s a simple matter, the result being that you and your spouse will each own 50% of the home with each of your wills kicking in to say what happens to each of your shares on your death.
Your spouse might find out about that little move because land title registrations are publicly searchable. But how many of you randomly search title to your own home?
Note that Ms. Tinglebottom is no more secure than your spouse had been. With a few strokes of a pen you can substitute your new lover, Mr. Wonderwand, with no notice to Ms. Tinglebottom.
If you have trust issues, steps can be taken to lock down your spouse’s estate plan.
Beneficiary designations can be made irrevocable.
Binding agreements can be made that your will won’t be changed without your spouse’s consent.
Assets can be put into the umbrella of a trust that cannot be altered without agreement.
But extra protections cost extra. You can expect to double or triple, or so, the cost of your estate planning.
Do you have questions? Please e-mail me. If there’s enough interest, I’ll write a follow-up column.
Please remember that the generic legal information and opinions I provide cannot be relied on as legal advice. To provide reliable legal advice, I must obtain sufficient information about you and your wishes to be able to advise you about how the law applies to your particularly circumstances.
Paul Hergott
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
