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Unborn Children and Wills

Update your Will to include unborn children. It’s only fair.

Children you plan with a legally married spouse, common law partner or acquaintance are entitled to financial support after you die. Even if you pass away before they are born, they are biologically yours under Ontario’s Succession Law Reform Act.

Axess Law can make a new Will to include unborn children and future beneficiaries you want to gift when planning Wills and estates in Ontario. 

Your Children and Ontario Estate Law

Before you have children, think about what would happen if you weren’t around for their birth. How would your spouse, partner or co-parent manage financially without you? What quality of life would your child have?

Picture future grandchildren. Your Will is a reminder that you care and a way to make memories with family members who have yet to arrive. You may want to leave a card, letter, memento or college fund in your Will. 

Ontario estate law recognizes the right of unborn children to financial support from parents who pass on. 

Children’s Rights to Support

Ontario’s Superior Court of Justice confirmed that in 2015 (Dagg v Cameron), when a common law partner sued for support. 

Unexpected Illness Shatters Dreams

When the couple moved in together in 2013, they planned to have a child and eventually get married. They lived together for 16 months, but their dreams were shattered in November 2013 when he was diagnosed with terminal cancer. 

Life Insurance Change Fails

Recognizing he would die before his son James was born, the deceased attempted to change his life insurance policy. His wife, still his legal spouse, blocked his efforts. She had been declared the irrevocable beneficiary during their separation. 

Making a Claim for Relief

So it was in 2015, with her partner gone and an infant to support, his common law partner made a dependant support claim for adequate and proper support. Despite the wife’s protests, the separation agreement was declared an estate asset. 

Clearly, James’ father wanted his son to receive a share of his life insurance. The courts agreed. And so did an Ontario Court of Appeal judge, who ruled both spouses were entitled to support from the life insurance policy.

Planning Ahead in Your Will

James’ father had no Will, but you have time to get your estate in order and protect future generations. Otherwise, if you neglect this obligation in your Wills, a parent or legal guardian of your child can petition your estate trustee or a court for financial support. Instead, let Axess Law structure your basic Wills in Ontario to satisfy legally required child support obligations.   

Deciding On Your Estate

You can base decisions about how you gift beneficiaries on:

  • marital status
  • biological or adopted children’s needs
  • family finances
  • estate size and value
  • types of assets you have – collectibles vs investments
  • your final wishes
  • and hopes for future generations.

If you’re retired, a surviving parent of your unborn child may qualify for the Canada Pension Plan (CPP) $2,500 death benefit to assist with funeral and burial costs. Your unborn dependant and their surviving parent or legal guardians may also be eligible for the CPP survivor’s benefit for minors. 

Six Tips for Ontario Wills

  1. Get a clear idea of your estate’s net worth after debts. If needed, arrange valuations or appraisals. Your estate trustee can update them when the time is right. 
  2. Make a ‘gift list’ of who gets what when you die.
  3. Include clear directions about what to sell or donate.
  4. Set up a family trust for minors or adult dependants. You can leave money in trust for a lifetime or dissolve a minor’s trust at any age you decide.
  5. Pick executors you trust. 
  6. Appoint a power of attorney for property when you make your Will. If age, injury or illness leave you incapable of making financial decisions, your POA can carry on for you. 

Wills and Children

Now that you have set aside money for your unborn child or grandchildren, decide how their money will be managed. Children under 18 require a trustee for bequests in Wills, including life insurance. Name a trustee or administrator to manage their money, or if your step-children get anything under Wills and estates, until they are adults. You can choose any future date for bequests to be paid out to them. Your estate trustee or administrator will manage financial requests from their parent or legal guardian until then.

Finding a Trust Administrator

Appoint an administrator you can trust to:

  • be prudent with your money
  • invest wisely
  • be respectful of your children’s needs
  • keep accurate records for passing of accounts to a court
  • and ensure children and grandchildren receive bequests as specified in your Will.

If you forget to make a trust or appoint a trustee, the province will hold your assets in trust until your children reach 18. You can save your children and partner the inconvenience of having to request money from the court by making a timely trust. 

Dangers of Delaying Your Will

Putting off writing a Will can cause yet more grief for your family, especially if you have unborn children on the way. Dying intestate in Ontario (without a Will) requires family members to apply to probate court for a certificate of appointment of estate trustee without a Will.

Delays to distribution of your estate may cause your family unexpected financial hardship at a difficult time. Government or employer assistance with funeral expenses or other survivor benefits can be held up. Unless you left money in a joint bank account, your spouse or partner may not be able to manage monthly bills like mortgage payments, rent, utilities or property taxes.

Failing to name an executor can bring other headaches. Next-of-kin approved by the court to be your trustee may disburse your Will in ways you didn’t intend, leaving out important people in your life. The court may even appoint a public administrator or, if you have no surviving relatives, have the right to your estate itself.

Booking Lawyers in Toronto Area and Ottawa

Our lawyers for Wills can meet with you remotely via video conference or in person at any of our Greater Toronto Area or Ottawa Axess Law locations, at your leisure. We have virtual Will lawyers near you, 7 days a week, day or evening, anywhere in Ontario. Use our convenient online booking form — it takes just minutes — to make appointments for your Will and power of attorney. Or dial our 1-647-479-0118 lawyer line (1-877-402-4277 toll free). 

We have onsite parking and easy public transit access.

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