A beneficiary is a person named in a will who is entitled to receive all or part of an estate. A beneficiary can also be a charity, group or organization. An estate can include money, land, securities, and personal possessions like jewelry and artwork.
The decision as to whom you should name as a beneficiary is a personal one; it is in your sole discretion when you make a will. So the answer to the question “Who should be named as a beneficiary in a will?” is: “It’s your choice!”. In simple terms, you decide ‘who gets what’.
We have prepared numerous wills that name spouses, partners, children, relatives, friends, charities, and even pets as beneficiaries. Yes, that’s right, I once prepared a will where the bulk of the estate was to be held in trust for two canaries with extensive provisions as to their ongoing care and maintenance. After the death of the last surviving canary, the residue (balance) of the estate was to be transferred to the Society for the Prevention of Cruelty to Animals.
BUT (and lawyers like to use that word “but”) it is important to keep in mind that a surviving spouse or child has the right to contest a Will under the British Columbia Wills, Estates and Succession Act (WESA). Therefore, while you can name anyone as a beneficiary, it is possible that your will can be challenged. You have a moral and legal obligation to fairly consider and provide adequate support for your spouse and children. If either feel that they were wrongfully disinherited, application can be made to the Supreme Court of British Columbia to vary the Will under the provisions of WESA. In those applications, the Courts may consider many things including:
- What was the relationship between the parties?
- What is the size and nature of the estate?
- Do the provisions in the will seem rational and make sense?
- Did the party disinherited take care of the deceased?
- Was there misconduct on the part of the party disinherited?
- Did the deceased make any promises during his or her lifetime?
- Did the deceased give any gifts and support during their lifetime?
- What are the needs and standard of living of the person disinherited?
The Courts often have to examine complex emotional and financial issues between the parties in determining whether a will should be varied. Therefore, the drafting of a will is very important. For example, if a spouse or child is to be excluded, the will should include reasons for the exclusion and perhaps be accompanied by other evidence.
By the way, the right to challenge a will under WESA does not apply to trusts like alter ego trusts and joint spousal trusts. And, of course, many of our clients choose to give gifts to their loved ones during their lifetimes to avoid the provisions of WESA as well.
Once again, it is important to consult with a lawyer experienced in estate planning to ensure that you have done everything possible to ensure that your intentions are properly documented and will be carried out upon your death to avoid Court challenges in the future. From experience, nothing taints the memory of a loved one more than when he or she did not have a will OR if a will is ambiguous and does not make sense.
