A will, sometimes called a ‘Last Will and Testament,’ is a formal document that says how someone’s estate (property and things that they own) is to be dealt with when they die.
Sometimes wills can be used to address where children might go to live if one or both of their parents dies. For example, if you and the other parent of your children were not, or are no longer, together as a couple, and you do not wish for your children to live with the other parent should you die, you can indicate this in your will. You would specify with whom you would like your children to live if you pass away, and you should indicate why you would like the children to go to live with this person instead of with the other parent.
BE AWARE, however, that just because you indicate something in your will, particularly around the parenting of your children if their other parent is alive, doesn’t mean that this is what will automatically happen should you die. If the other parent wishes to, they can apply for custody of the children, regardless of the wording in your will. Your will simply shows your preferences. It is always up to a judge to determine whether your preferences are in the best interests of the children involved if the other parent chooses to make an application.
In any event, it is a good idea to have a will, especially if you have children and/or property. Speak to a lawyer who prepares wills for help or for more information. Be cautious when using a ‘wills kit’ on your own – often, these types of kits are not monitored by any specific agency, and they may or may not be in the form you need. If your will is not prepared correctly, it may be considered invalid.
For information about making a will, click here.
You cannot give ‘legal custody’ of your child to someone in a will, but you can indicate with whom you wish for your children to live should you die. The person your children go to live with if you pass away may have to make a formal application for custody when this happens so that they are able to fully act as a parent for the child(ren). For example, if someone has a court order giving them custody of their children, and they die and the children go to live with the other parent as a result, that parent may now have to apply to the court to have the order changed.
Wills are generally not something dealt with in family law. The Probate Court usually handles these matters. Some matters might cross over between estate law and family law, such as when a person dies and a family member believes that they are still a dependent and have not received adequate money from the estate (Testator’s Family Maintenance Act) or situations where a person is claiming an interest in property that a will has designated for someone else (Matrimonial Property Act).
For information about Probate Court in Nova Scotia, click here.
The family law courts also generally do not deal with issues of Power of Attorney or living wills.
Parts of your will may be made invalid (be revoked or ‘canceled’) if you divorce. When you get divorced, any part of your will that provides a gift or benefit to your ex-spouse, or an appointment of them as your executor or ‘personal representative,’ could be revoked, depending on the terms of any court order, marriage contract, separation agreement, or Minutes of Settlement, and whether the will was made before or after the order or agreement. Documents, like a separation agreement, may state that the terms of your will won’t be affected by a divorce. You should talk to a lawyer for advice if you have a will and are getting divorced, to make sure you know how your will may be affected and that all of your important documents are prepared the way you want them to be.
Unless you knew that you were getting married at the time your will was written, and this is stated clearly in the wording of the will, your will likely will become invalid (it will be revoked or ‘canceled’) when you get married.
If you are drafting a will, and you are getting married, and you want your will to remain valid once you are married, you will likely have to include a statement that you are making this will in contemplation of your upcoming marriage, and state the name of the person to whom you are getting married.