Wills aren’t foolproof

By Ian Harvey | September 5, 2013 | Last updated on September 5, 2013
2 min read

Can you make your will withstand any protest or change of circumstance? Not really, say most lawyers, because the more complex you make the will, the more likely it is to be challenged.

There’s also one other factor: “You’re dead,” says Felice Kirsh, a partner with Schnurr Kirsh Schnurr Oelbaum Tator LLP. “You cannot control things from the grave.”

Creating trusts and structures adds complexity and costs, which can be justified if the estate is in the tens of millions, but that comes with emotional risks.

“You’re saying you don’t trust your children to give them the money but you’ll give it to someone else to control,” says Kirsh. “I’m not a fan of putting a trust company in charge.”

Estate lawyer Ian Hull says he’s trying to draft so-called “poison pill” clauses into wills that trigger a lesser bequest or penalty if there’s a court challenge. But some of his fellow lawyers aren’t yet convinced the technique will stand up over time.

Even giving away the bulk of the estate in life may not work. One Toronto real estate developer tried it, giving each of his children $150 million in a “velvet handshake” in an effort to distribute the inheritance while he was still alive. A few years later the family sank into litigation.

Complexity can also backfire. While the courts can’t invalidate an entire will, they can redraft it to reapportion assets, which is why it’s better to settle the family feud proactively.

A well-drafted will, with thoughtful provisions (e.g. backed by a video offering insight into the decisions and attesting state of mind) might also hold sway, says Justice Brown, former Toronto estates court jurist. “It wouldn’t be a legal document but it might be of interest in some cases. We expect police to [film] statements, so why not?”

Ian Harvey