Guardianship of Children

If you are the parent or legal guardian of a child, then you should prepare a Will, which includes appointment of a guardian for those children. While the courts reserve final jurisdiction to appoint guardians in the best interests of the child, generally the courts will respect wishes expressed by parents in their Wills. If no guardian is appointed, then either another family member may have to bring guardianship proceedings seeking custody of the children or, if no such person volunteers, then there is the possibility that your children could become wards of the state. You should also consider who would act to manage the inheritance left to your children in the event of your deaths – whether this would be your executor, the guardian, or another individual who may be suited to the role.

As soon as children are born or adopted, update your Will to appoint a guardian. Review this clause every few years to ensure that your choice of guardians is still appropriate, and that the guardians are still willing and able to take on the role if necessary. 

Making Specific Gifts

We’ve all heard stories of post-it notes attached to the back of paintings. To best ensure that those antiques, collectibles, jewelry and tools make it to the intended beneficiary, it is best to make a list as part of your estate plan rather than rely on these notes. To be legally binding on your executor, special gifts must either be made in the Will, or set out on a separate list which is in existence as of the date of the Will, signed, dated, witnessed and referred to in the body of the Will.  This is called “incorporation by reference”.  A less formal means of expressing these wishes is to prepare such a list, signing and dating it, and filing it with the Will. This list can be changed or replaced from time to time without re-signing your will; however, it will not be legally binding on your executor. Rather, it will only serve as guidance for your executor as to your wishes.

If you intend to make special gifts from your estate, ask your lawyer about the proper way to make a list and how the list should be referenced in your Will. There is no guarantee that a list written and kept at home will be found by your executors when the time comes, and it will not be legally binding unless it forms part of your Will.