Mar 11th, 2019
Jan 14th, 2013
At the beginning of a new year, many people, including new or expecting parents, discuss the necessity of making a Will, and place this task at the top of their yearly “To Do” list. Often, this undertaking is not checked off by the end of the year. In many cases, it is due to the fact that couples do not like discussing the delicate issue of who should be responsible for bringing up their children if they should die in an accident in common.
There are three main reasons why people make Wills:
In accordance with the Civil Code of Quebec, a father or mother may appoint a tutor (and replacement tutors) to his or her minor children by way of their Will. This right to appoint a tutor belongs exclusively to the last surviving parent. The tutor appointed by the parent assumes office upon accepting the position. I recommend appointing the same tutor in both Wills, to ensure consistency, and to avoid any issues in the event both parents die in a common accident. This allows the parents to make decisions as to the well-being of their children with minimal involvement of family or the courts.
When preparing the short list of potential tutors, there are many issues to consider. It is essential to think about both the needs of the children and the ability of the tutor to take care of them. Therefore, the age of the tutor needs to be taken into account. The death of both parents of minor children would be a very trying time, and the deceased parents’ wish should be to minimize any disruption in the children’s lives. Given these considerations, choosing a tutor that lives in close proximity is recommended if such individual meets the parents’ other criteria. It is also important for parents to do a proper evaluation of the individuals that they are considering as it is crucial to determine if the appointed tutor would raise the minor children in the same manner or in a similar manner to what the parents would desire.
Obviously, this issue is delicate and needs to be seriously discussed prior to a final decision being made which will then be adopted in the Wills.
It should also be noted that a Will, so long as the maker of the Will is alive and competent, can always be changed by way of an amendment thereto (codicil) or the drafting of a new Will.
Marissa Lydynia practices in the areas of wills and estates at Spiegel Sohmer and has experience in drafting wills, mandates and the administration and liquidation of estates.