Creating Your Will – What Not to Include

Many people have a pretty good understanding of why having an estate plan is so valuable – with a Will, they are in control of what happens to their estate on their passing. But whilst most are clear on what they want to include in the Will, many are unaware of what they should not put in it, or even more importantly, what may pose legal complications posthumously.

You might think it’s better to include absolutely everything in your Will. Then if there is a problem, your loved ones can work it out after you’re gone. This is a bad idea. You will be astonished to find out that there are cases in which you should leave certain items out of your Will.

With this in mind, here are some of the most common things that people mistakenly believe should be included in a Will, but certainly should not.

Gifts with conditions

Henry Budd, who died in 1862, left his substantial fortune to his two sons on the explicit condition that neither “sullied his lip with a moustache” – the perfect incentive to remain clean-shaven.

German poet Heinrich “Henry” Heine left his estate to his wife, Matilda, in 1856 on the condition that she remarry, so that “there will be at least one man to regret my death”. Ouch.

While certainly comical, these types of conditions would likely not be upheld in a Will today.

If you are considering attaching conditions to gifts left in your Will, think again. Such conditions are oftentimes not legal, and would in any case be very difficult, if not impossible, to enforce. So, if you were thinking about leaving your car to your sister on the basis of her having divorced your brother-in-law, you should not bother.

If, however, you wish to make some form of encouragement, such as leaving your gold watch to your granddaughter on her graduation from university, then this would be acceptable, although again it could be difficult to enforce. Bear in mind there will be nobody to police this after you’re gone. Bear in mind, that your granddaughter may graduate from university when she is 70 years old. This means that somebody will be looking after that watch for a very, very long time.

If you have any property you want to leave with conditions and special instructions, you are better off relaying your personal sentiments in a letter of instruction to help inform your family of your wishes. Note that these letters are informal and not legally binding. They should be used in tandem with your Will. 

Funeral arrangements

A Will is not the right place to set down your funeral wishes. The fact is that your Will needs to go through probate before it can be released to your loved ones and your estate can begin to be settled. Funeral arrangements are one of the first things that will happen after you die, so if you leave your funeral wishes in your Will, it’s unlikely your loved ones will get to see them in time, and so your wishes may not be carried out.

The best course of action is to discuss your funeral plan with your next of kin or executors and leave them a written note of your wishes. You can use our service to prepare a funeral arrangement document that you can leave to your loved ones immediately after you pass.

Gifts to pets

You might love your furry family member more than anyone else in the world, but pets do not have the capacity to own property, so think twice about leaving Fido the holiday home. It is not legally possible to pass assets on to an animal. Think instead about leaving the pet with someone you trust to look after them well, and possibly put some money aside in a pet trust to pay for the pet’s care or donate to animal charities.

Jointly held assets

A Will only covers assets solely owned in your name. Any property that you own jointly with another family member, such as a home or joint bank account with your spouse, or an investment with a sibling, comes with rights of survivorship that bypasses your Will. If one of the joint owners passes away, the surviving owner automatically inherits the property.

There is therefore no point whatsoever in including joint assets in your Will since they have their own built-in mechanisms for distribution. If you want someone other than your co-owner to receive your share of the asset upon your death, your will need to change title to the asset as part of your estate planning process.

There are several types of assets and accounts that are payable to a beneficiary upon death. This is called a beneficiary designation, and is often associated with retirement accounts, RRSP’s RESP’s, pensions, investment accounts and life insurance policies. This is another instance when there’s nothing stopping you from listing these types of accounts in your Will, but it may be best not to. This is because the financial entity requires that you name a beneficiary on the account itself. When you pass away, that account will automatically be paid out to the designated beneficiary associated with the account, regardless of what your estate plan says.

If you accidentally bequeath the property to a different beneficiary in your Will, you could inadvertently create a lot of conflict. Instead, it’s best to include your beneficiary designation in your informal letter of instruction so that your family members are made aware of the accounts.

Anything you don’t own outright

If you have belongings that were funded by a finance agreement, then you will be unable to list these in your Will as they are not legally yours to gift. Items such as leased cars will usually have to be returned to the finance provider.

Business interests for an active business

Although you can give away your business interests in your Will, there are some compelling reasons not to. Wills must go through the probate process which eats up a lot of time. A smooth and uninterrupted transition is usually desired when it comes to business, and you certainly won’t want your succession to be up for contestation.

Personal wishes and desires

Some people use their Will to have a last laugh, or maybe to leave a poignant message to someone they’ve left behind. William Shakespeare apparently left his wife his “second best bed”.

Your Will is an opportunity to smoothly transition assets from your estate to loved ones and beneficiaries. It is intended to bring order for what can be a confusing and difficult time for your family. The moment can be further complicated if you take one last swing by trying to settle a score.

Although your personal wishes are important to you, Wills should not serve as a medium to express sentiments about family relations or be used as a platform to address personal issues from beyond the grave.

Why not use your Will to settle old scores? Simply put, because your Will is a public document, and people you don’t intend can see it.

If you have final issues with your loved ones as you put together an estate plan, it’s better to not mention them at all. Otherwise, you risk adding fuel to the fire and making things more difficult for your loved ones.

You can leave a letter or set of instructions for your loved ones if you wish but consider doing so separately from your Will so that it remains private. 

Asset lists and secret or secure information

Should you put your bank account details, access codes, passwords and other secure information in your Will? Many people assume that they must list every individual account or item they own in their Will. However, this is not the case, and, in most circumstances, you do not need to include specific bank account details or asset lists in your Will.

Most Wills include a clause that deals with the ‘residue’ of your estate. This captures any assets you own when you die that are not specifically mentioned elsewhere in your Will. This clause means you do not need to decide what to do with each of your individual bank accounts or assets.

It’s also not unusual for people to change bank accounts over the years. Therefore, listing specific accounts or assets in the Will isn’t reasonable – as every time you moved to a new account, you would need to amend your Will.

Remember, too, that Wills go through a court procedure called probate, which is a public process. That means people can access the court’s records, find the Will and view the contents with all the confidential information you may have included.

So instead of listing every detail in your Will, the best action is to prepare a list of the assets that make up your estate (account numbers, property and possessions) and ensure that your executor(s) can access this list when the time comes.

Coverage for a beneficiary with special needs

If you have a child with special needs, a Will isn’t always the best option to make appropriate arrangements. For starters, leaving your estate to a beneficiary with special needs might jeopardize their qualification for government benefits and entitlements. It’s strongly suggested that you set up a special needs trust, also known as a Henson Trust or a Discretionary Trust, through which you can make arrangements to support your loved one without jeopardizing their government aid.

Currently, most online estate planning services do not support the Henson Trust. These trusts are complicated financial planning tools, and the laws governing them can vary greatly between jurisdictions. If you are caring for a loved one with a disability, you should consult with a lawyer who has experience with this type of trust and understands your circumstances.

In conclusion

You are probably getting the idea by now that a Will is not always the most appropriate document for everything that you have to say.

Although you’ll want to make sure that every aspect of your legacy is accounted for, you also want to be careful to avoid creating any legal conflict within your estate plan. 

While it might seem hilarious to write jokes into a Will, it’s not without risk. Tempting as it may be to go out with a laugh, a Will is not the place to include eccentric, fantastic, or malicious clauses. It is a legal document designed to be a clear expression of your wishes and unusual requests or jokes would just reduce the clarity of your instructions.

Your Will should be kept as simple as possible, so as not to raise difficulties for those dealing with your estate when the time comes. If you absolutely insist on a joke, or an odd request, check to see whether this could invalidate the Will or lead to ambiguity issues in reading the Will, and avoid doing it if it could.