In Nova Scotia, there is absolutely no obligation for you to disclose what is in any of your estate planning documents. That said, there are a number of circumstances when having a frank conversation with your executors and beneficiaries in advance of your death may avoid an unpleasant (and often costly) conflict after you are gone.

Talking to Your Executor

One of the most important decisions in your estate planning is who you appoint as your Executor. In Nova Scotia, your Executor holds your assets in trust and is responsible to handle the distribution of your estate according to law. In many cases, spouses choose each other as their first choice as executor and an adult child as the alternate.  If you have multiple children and you are selecting only one of them to act as your executor (which is frequently the case), it may be worth it to have a conversation with them to explain your reasoning. If people understand your choices there is less chance they will oppose the appointment when the time comes.

Some people view being named as an Executor as an honour.  However, it is also a sizeable responsibility. It can be stressful and time consuming. Another reason to let your chosen executor know that you’ve named them (or are thinking of naming them) is so you can confirm that they are even willing to take on the role. This is particularly important if you are naming a friend who may not feel as obligated to facilitate the winding up of your affairs as family might.

Explaining the Distribution of Your Estate

Similarly, if you are splitting your estate unequally between family members, particularly children, it can be helpful to have a conversation to explain your reasoning. An unequal distribution between children may be your choice in circumstances where one or more children take on a larger share of the burden of caring for aging parents or their property, where the parents have disproportionally supported one child during their lifetime or where the children are disproportionally financially stable. Unequal division also occurs frequently in blended families.

There is no right or wrong way to distribute your assets, but if there is a chance your beneficiaries may not understand the division you’ve chosen it might be practical to help them understand your reasoning while you’re still around to have the conversation. Having these difficult conversations also reduces the chance that your beneficiaries Will contest the validity of your Will based on undue influence.

Conversations Can Cause Conflict

However, in some circumstances, it could create a great deal of family conflict to try to have these conversations. You know your family and friends best. If you believe telling them your intentions in advance of your death will cause jealously or a rift between them, then perhaps it’s not worth it to try to address things in advance. You may also choose to avoid having these conversations if telling them will cause one or more of them to harass you to change your Will.

Explain Your Choices in Your Will

If you choose not to explain your reasoning for the distribution you choose before your death, and your choice could be seen as unconventional, it is advisable to make a note in your Will as to why you chose the disposition that you did. Again, if the beneficiaries understand your reasoning, they are less likely to contest the Will. The court is also more likely to uphold your Will if it can see evidence of your clear reasoning. This is particularly so if you are choosing to disinherit a spouse or child. There is a presumption that a parent will leave their estate for the support and betterment of their family (though this presumption is weakened if the spouse/child is independently financially stable). If you have a valid reason for not doing so, it is a good idea to clarify exactly why that is the case.

If you have any questions regarding your Will or estate planning, you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.

By: Dianna M. Rievaj, MBA, LLB - Founding Lawyer

The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. Nothing contained on this blog is legal advice or constitutes a legal opinion. While it is our goal to provide information which is current, legislative changes and court decisions, among other matters, may result in some information no longer being current or accurate. You should consult a lawyer before relying on any information. The views expressed herein by individual contributing lawyers posting entries to the blog are solely those of the authors and should not necessarily be attributed to or considered representative of the firm of Highlander Law Group Lawyers