As technology advances and society changes, Wills are starting to look different from years ago. In particular, people are now requesting that specific bequests/gifts be included in their Will. Some of the most common unique requests are pet trusts, digital assets, and genetic material. Let’s talk a little bit more about how to deal with these three unique gifts.
Many Canadians who have pets consider their pet a beloved family member. Let’s be honest, some of us love our pets more than our brothers or sisters! However, legally, a pet is considered your personal property, not a legal person. This means a pet doesn’t have the capacity to be a beneficiary and receive a gift through a Will.
But, there are ways you can ensure that your pet is provided for in the event you pass away. You can gift your pet to someone and provide that person some money to take care of the pet. The disadvantage of this is that this is not a formal trust and a court may not enforce it. Also, if the pet dies, the money given to the person to take care of the pet is now all for that person, not the pet. However, this is still the best solution to dealing with the care of your pets.
With the prevalence of technology in our society, it’s important to consider your digital assets in your estate plan. There are digital assets that can be accessed by anyone who has the hardware where the digital asset is stored. For example, pictures or documents in folders on your laptop. There are also digital assets that are stored online and require a password and username to access, such as a Facebook account. The digital assets that are accessible by anyone from the hardware can be dealt with in your Will using standard disposition clauses. However, for online digital assets that require a password, the Will should include specific wording that gives the executor authorization to access these digital assets. It is recommended that you provide your executor with an up-to-date list of all your digital assets and corresponding passwords. You can use a memorandum to provide this information.
Are embryos and sperm property that can be considered in a Will? In a case in Alberta, the court decided that embryos were property and the sperm a man donated is a gift so he no longer has any ownership of the sperm or resulting embryo. However, experts in the area, believe that this court’s finding should be limited to the specific facts of the case, meaning that whether someone has ownership rights or not depends on the circumstances in question.
The courts have not been consistent on this topic. For example, in the US, a court found that for certain purposes, genetic material is not personal property, but rather a special category of property, like intellectual property. In Canada, in 2004, the Assisted Human Reproduction Act was passed that dealt with considering genetic material different from other property. However, the Supreme Court of Canada found this to be outside federal power and the federal government intends to wind down this system.
All this is to say, there is no clear-cut rule relating to genetic material. Until further direction is given by the courts, any clauses in your Will dealing with genetic material cannot be guaranteed to be enforceable. With this in mind, any such clause can be worded in a way that any ownership interest the testator may have been passed on to the beneficiary. You should also consider including wording to ensure any decision-making type of rights is transferred to the beneficiary.
If you have unique assets that should be dealt with in a Will, give us a call and we can determine the best way to express your intention regarding these assets in your Will.