Bermuda: 'Trigger Events’ Can Prompt Changes To Your Estate Plan

Last Updated: 14 March 2013
Article by Michael Mello

There are numerous 'trigger events' that may require you to make changes to your Estate Plan.

That is true whether those events impact you personally, or whether they impact immediate family members, executors and guardians named in your Will, attorneys under an Enduring Power of Attorney or proxies appointed under your Healthcare Directive.

Common trigger events include birth, marriage and death; legal separation or divorce; serious illness; change of religion; a long trip or a change of country of residence; and change of job, or retirement.

Should you be considering marriage, or recently married, you should be aware that any Will made before your marriage will no longer be valid. If you do not make a new Will in contemplation of your marriage, or a new Will after marriage, the succession rules in the Succession Act will automatically apply for the distribution of your estate assets. By making a new Will on marriage, you avoid the succession rules coming into play on intestacy that will probably not reflect your wishes.

On the birth of a child, you should appoint a legal guardian in the event of your death while your child is still a minor. If any of the trigger events impact this appointment, you should reconsider it. When appointing guardians, you should consider persons who have adequate finances, are in good health and who share your views on education, religion and other important matters.

Choosing a guardian who lives in Bermuda will avoid your child being uprooted to another country. Choosing a married couple may not always be wise. For example, instead of naming your brother and his wife, just name your brother as the sole guardian to avoid a problem should they divorce. If you decide to appoint a sole guardian, you should also choose a suitable substitute.

Should you be considering divorce, or be divorced, you should re-visit your Estate Plan. If you die divorced, the legal fiction that your ex-spouse's death is presumed to have taken place on the date of the divorce decree comes into play. This means that any provision concerning your ex-spouse will automatically become invalid on divorce unless your Will clearly states otherwise.

If you have any financial obligations towards your former spouse, or children from a former marriage, you must either specifically address such obligations in your Will, or outside your Will (e.g. by way of a life insurance policy), to avoid any application to the

Supreme Court on your death by such persons. If you do not do so, the Court may order reasonable financial provision be made out of your estate. The failure to address such financial obligations may mean that your intended beneficiaries will not receive the estate assets that you intended them to have.

An Enduring Power of Attorney should be part of your Estate Plan in the event of any subsequent legal incapacity you may suffer prior to death. If you have bank accounts or real property in your sole name, granting an Enduring Power of Attorney will empower your attorney to manage your affairs while you are incapacitated.

Should you have bank accounts in your sole name and fall seriously ill, your financial affairs could start to unravel without an Enduring Power of Attorney in place. For example, your family may be forced to apply to the Supreme Court for a Receiving Order to obtain the necessary authority to manage your affairs while you are incapacitated, resulting in significant expense to your estate and an onerous burden on the family member appointed as your Receiver.

Should you have reservations about giving someone authority to manage your affairs when you are still capable of doing so, you can grant an Enduring Power of Attorney on the basis that it will not be exercised until your physician issues a medical certificate stating that you are incapable of looking after your own affairs.

A Healthcare Directive is usually a separate document setting out in advance what kind of medical treatment you wish or do not wish to receive in the event you subsequently become incapable of personally communicating your own wishes. It includes the naming of a proxy, a person you choose and name in your directive to act for you in the event that you are not able to make such judgments and speak on your own behalf.

Should any of the trigger events impact your appointees such as the executors of your Will, the guardians of your children nominated in your Will, the attorneys named in your Enduring Power of Attorney, or the proxies nominated in your Healthcare Directive, you should revisit your Estate Plan and determine what, if any, changes need to be made.

These are only a few examples of the impact that trigger events may have on your Estate Plan -- and you should always be alert to them and make changes as and when necessary.

As with all complex matters of law, it is sensible to consult an expert in the area.

Article first published in The Royal Gazette, March 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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