In considering when to review your will, the focus is often on the personal - a change in relationships or change in assets but the law changes too - sometimes gradual and sometimes, it seems, by leaps and bounds. Societal shifts in perception and understanding drive political and policy discussions. The resulting change in law is not something within any one individual’s control and often times the change and its impact on existing personal planning may escape attention.
Consider these three examples.
In January 2016, changes to the Income Tax Act resulted, with few exceptions, in most trusts created by will and estates older than three years being taxed at the top marginal rates. For previous estate and tax plans put in place, in part, to enjoy the benefit of lower, graduated rates, a key consideration had been removed.
In January of this year, the Ontario Succession Law Reform Act was amended to change the definition of “child” and “issue” to include, in certain prescribed circumstances, individuals conceived and born after death, which may, as a result, give rights to such an individual against an estate similar to rights of a deceased’s children or issue alive at the time of death. Reproductive technology makes it possible for a person to be a parent after his or her death and the reasoning behind the amendment was that in certain circumstances, certain rights and obligations of parentage of such child may follow.
In an Ontario Superior Court decision earlier this year, Koziarski v. Sullivan, the Court determined that although 1978 amendments to the Ontario Succession Law Reform Act updated the definition of “issue” to include persons born outside of marriage (as a reflection of the then shifting societal perspective on family relationships), that 1978 amendment could not be read by the Court to apply to the definition of “issue” used in a will created in 1977. The result, although likely under appeal, was that a deceased’s grandson, born outside of marriage, was excluded from sharing in the estate.
Of course, concern about changes in law extends beyond considerations of estate planning to any other area as well; to name just a few: your business, operating individually, as a corporate or in a partnership, and your rights and obligations as employer or employee or as spouses and parents.
The law changes so your legal documents must change too. Periodic review of your documents and regular checkups with your professional advisors is a good way to keep your plans current with the law and consistent with your intentions.
Adam Kowalsky is an associate at the law firm of Cobb & Jones LLP. For more articles, visit the library page at www.cobbjones.ca