Monday, November 1, 2010

'Same plane' provisions in wills

Most estate planning lawyers recommend that every single will contain a 'calamity' provision.

This provision is also sometimes referred to as the 'same plane' clause – i.e. it is the one that applies if the will maker and all of their intended immediate beneficiaries die in the same accident.

Last week, we had a situation where the two clients (who were spouses) each had quite particular (and different) provisions that they wanted to see apply if the two of them and their children died at once. During the discussion it became clear that each spouse was considering the total combined assets as solely 'their' assets.

Our strong recommendation was that each spouse should in fact have mirror provisions under their respective wills and simply divide 50% of the entire estate according to each of their respective wishes.

The reason for this recommendation was that the only time a calamity provision does in fact apply is when both spouses and all of the immediate family have passed away. In other words, the estate should be viewed as one combined estate; not two separate ones.

Until next week.