Reasonable Doubt: Having the last word with wills and estate planning

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      If you ever come across a wills and estates lawyer, ask if they’ve ever heard of the Toronto Baby Derby. Chances are they have. Or maybe they know it as the Great Stork Derby. Google it and you’ll read about the unbelievable story of a rich Toronto lawyer named Charles Millar who died in 1923. He left behind a ridiculous will. It sounds like an urban legend, but it’s all true.

      Millar’s will gave gifts like shares of a brewery to church ministers who supported prohibition. He gifted a vacation home to three lawyers who hated each other. He also set aside about a half-million dollars to be given away in 10 years’ time—to whichever Toronto woman gave birth to the most children in those 10 years. This sparked the Great Stork Derby.

      At first, people wondered if this was a joke. Others wondered what kind of public statement Millar was making. The will survived years of legal challenges that even went to the Supreme Court of Canada. After 10 years (and in the midst of the Great Depression), multiple women came forward to claim the fortune. With inflation, it was the equivalent of tens of millions today. That fortune was split between four mothers who had nine babies each in those ten years. Again, this is true.

      You may find this story amusing or outrageous. Although I wouldn’t endorse these shenanigans, this story does show how a person’s last wishes, however ridiculous, might be carried out with proper planning.

      Estate planning is not just about having a piece of paper you call your will. It’s much more than that. It’s transferring property. It’s planning guardianship of your children. It’s giving someone you trust the ability to make medical or financial decisions on your behalf if you become unable to decide for yourself (i.e., due to health reasons).

      People tend to put off estate planning. After all, death is the last thing people want to think about. Also, some might think their situation is too simple to need it.                  

      I recently sat down with Vancouver lawyers Liam Bath and Kaitlin Pierce to get their take on estate planning. According to Bath, good estate planning boils down to ensuring your last wishes are carried out. Otherwise, “you leave loved ones with the headache of sorting your estate out themselves,” Bath says.

      So when is a will necessary? Maybe the better question is: what happens if someone dies without a will? This is where B.C.’s Wills, Estates and Succession Act (WESA) comes in.

      “WESA dictates how estates are dealt with when a person passes away without a will,” Pierce says. It is sort of a fallback. WESA has very specific parameters of where the assets go, and there is no flexibility, according to Pierce.

      How well does WESA work as a fallback when someone dies without a will? It could work just fine in simple cases. Pierce gives the example of someone passing away with one surviving spouse. If that person wanted everything to go to the spouse anyways, then the distribution from WESA would be in line with their wishes.

      However, problems can emerge because WESA is so rigid. WESA will not be able to factor in considerations such as wanting to give to friends or charities, according to Bath. Without the flexibility, WESA may create an outcome that the deceased did not want at all. This is when estate planning is key.

      So what are some situations where WESA becomes a bad fallback? Or, put another way, what are tricky situations that call for estate planning?

      Pierce gives examples of “nontraditional” situations where estate planning is needed. One example is a spouselike relationship where the partners live separately. This happens where two people meet later in life but continue to live apart.

      A second example is a polyamorous relationship. A third example is a spousal relationship that is kept secret from family members. This can be happen with LGBTQ or interdenominational relationships. Take a scenario where grieving family members must sort out an estate themselves when someone they thought was a roommate or friend actually comes out as a secret spouse. There can be nasty litigation that follows because there was no will.

      Bath offers one more situation where estate planning may be needed: where there are children who aren’t formally adopted. Without good planning, those children could be left out. And while on the subject of children, Bath makes a special plea: plan your estate if you’re a new parent because, at the very least, you need to name someone to care for your children.

      Often, estate planning is needed because a person’s situation is not as simple as it may seem. This planning is, as Bath bluntly puts it, “like paying taxes: it’s just part of being an adult".

      What are some tips for good planning? Start early, Pierce says, so you can make these important decisions when you are healthy and not in a rush.

      And if you get advice on this, Pierce makes this suggestion: “It’s important that you feel comfortable to talk openly with anyone you consult with.” To get the best advice, you need to think carefully about what you want and be clear about it with that person.

      A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or consult a lawyer. The information in this article pertains to British Columbia.

      The writer thanks Liam Bath and Kaitlin Pierce for their insight.

      Kevin Yee is a trial lawyer at Personal Legal Services. He acts for people who have been injured or wronged. If you have topics that you’d like Reasonable Doubt to cover or if you have a general question for a lawyer, you’re welcome to send him an e-mail.