Why a simple Will may not be good enough

The frustrations of a Waterdown woman who is unable to obtain the ashes of her deceased father even though she paid for the funeral highlights the need for effective estate planning.

 You wouldn’t believe how often we hear that people think they need a “simple Will”.   It’s not hard to write a Will.  But doing it effectively so that it honours the deceased and his or her wishes and allows his or her heirs to move on without undue burdens is another story altogether.  Quite frankly, there is no such thing as a simple Will.  We are complex beings with unique characteristics, nuances and quirks.  A document that may appear simple on its face can cause the most unfortunate tensions and frustrations, or, simply, unwittingly not carry out the wishes of the testator at all.  In the case of this unfortunate Waterdown lady, the law isn’t in her court (excuse the pun). 

A funeral home will gladly accept the cheque from anyone who is willing to pay for a funeral but it is the executor (or in the case of multiple executors, all of them acting in concert) who hold the legal property rights of the deceased, including with regards to the disposition of the body or its remains.  It doesn’t even matter what the deceased may have said or written before they died, although executors will often follow the deceased’s wishes anyway.  So if incompatible siblings are appointed to act together as executors but they can’t or won’t cooperate with one another, chaos and bedlam will be the probable result.     
 - David van der Woerd

David van der Woerd is a Partner practicing in the Estates Law and Charity Law groups at Ross & McBride LLP.