Making and Executing a Will (16:III) - Revision history

Nate Russell: /* 5. Remuneration and Benefits */

2025-11-27T22:49:25Z

5. Remuneration and Benefits

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	=== 5. Remuneration and Benefits ===		=== 5. Remuneration and Benefits ===

	A personal representative may be entitled to remuneration under a remuneration contract or pursuant to an express authority under the will. Otherwise, they are entitled to fair and reasonable remuneration, not to exceed 5 percent of the gross aggregate value of the estate under section 88 of ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96464_01 the Trustee Act]'', RSBC 1996, c 464, and an annual care and management fee not exceeding 0.4 percent of the average market value of the assets. A personal representative may be a beneficiary under the will, though it is a rebuttable presumption that any benefit other than a residuary bequest under the will is in lieu of compensation. See [https://~~signon~~.~~thomsonreuters.com~~/?productid=CRSW&viewproductid=CRSWINDIGO&lr=0&culture=en-CA&returnto=https%3a%2f%2fnextcanada.westlaw.com%2fCosi%2fSignOn%3fredirectTo%3d%252fDocument%252fI10b717d123c763f0e0440003ba0d6c6d%252fView%252fFullText.html%253ftransitionType%253dDefault%2526contextData%253d(sc.Default)%2526VR%253d3.0%2526RS%253dcblt1.0%2526firstPage%253dtrue&tracetoken=0820241640030-Ah8t7HkCoc0YGe8Q962XNAb5K5l8mu3GSMUZ8967dtAMvdCKlBtfzfIpOafKpIos8OJAEXyF6OS5LlXZ90SyyLpNjBVUjMI3j20jKq35tygl2e81RCutSUcJ4TIP5rmJ-da3BnmeeBkQ1611GTDegm_vQXJPlV78HSpH4RXDEpYDxTalD8KRNHyEmMeWqfLlzl_RVIieLFVJp7UK-5wHDlE_i2zGLxzwfHlDDbX8nMWJHeaoWSRzDDiBc_qSMivjtTq6fI9eJuUUK5b_3OmgHhUiEURi4af8jXJftvrQXoL0tnR1_mzTIv7VlgIDcfu1wJ7V57z4FMflsE1IOb-waWaCJCxKNPjvMgppy3RNVOwFIKYH6exQa4-SJZfeMTk&bhcp=1 ''Canada Permanent Trust Co v Guinn''], (1981) 32 BCLR 288 (SC).		A personal representative may be entitled to remuneration under a remuneration contract or pursuant to an express authority under the will. Otherwise, they are entitled to fair and reasonable remuneration, not to exceed 5 percent of the gross aggregate value of the estate under section 88 of ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96464_01 the Trustee Act]'', RSBC 1996, c 464, and an annual care and management fee not exceeding 0.4 percent of the average market value of the assets. A personal representative may be a beneficiary under the will, though it is a rebuttable presumption that any benefit other than a residuary bequest under the will is in lieu of compensation. See [https://canlii.ca/t/23pb7 ''Canada Permanent Trust Co v Guinn''], (1981) 32 BCLR 288 (SC).

	A trust company can be appointed Executor but usually will not consent unless the assets are substantial.		A trust company can be appointed Executor but usually will not consent unless the assets are substantial.

LSLAP at 19:31, 13 October 2025

2025-10-13T19:31:42Z

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	{{REVIEWED LSLAP \| date= ~~August 22, 2024~~}}		{{REVIEWED LSLAP \| date= 16 July 2025}}
	{{LSLAP Manual TOC\|expanded = wills}}		{{LSLAP Manual TOC\|expanded = wills}}

LSLAP: /* b) Gifts to Children */

2025-10-01T00:31:10Z

b) Gifts to Children

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	The intended beneficiaries (i.e. the children) need not be alive at the time of execution to be included if a general term such as “children” is used.		The intended beneficiaries (i.e. the children) need not be alive at the time of execution to be included if a general term such as “children” is used.

	Section 153 of ''WESA'' provides that where there is no trustee in the estate, money bequeathed to a minor is paid to the Public Guardian in trust for that minor. The [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96223_01 ''Infants Act'', RSBC 1996, c 223] (s 14(1)) states that, subject to the terms of a trust set up in a will, the Public Guardian may authorize payment of all or part of the trust for the maintenance, education or benefit of the infant.		Section 153 of ''WESA'' provides that where there is no trustee in the estate, money bequeathed to a minor is paid to the Public Guardian in trust for that minor. The ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96223_01 Infants Act]'', RSBC 1996, c 223 (s 14(1)) states that, subject to the terms of a trust set up in a will, the Public Guardian may authorize payment of all or part of the trust for the maintenance, education or benefit of the infant.

	If part of an estate is distributed to a minor, the Executor or Administrator of an estate is left open to an action by the minor (upon reaching the age of majority) to repay all the monies distributed in a manner not in accordance with the terms of the will.		If part of an estate is distributed to a minor, the Executor or Administrator of an estate is left open to an action by the minor (upon reaching the age of majority) to repay all the monies distributed in a manner not in accordance with the terms of the will.

LSLAP: /* e) Gifts to Spouse */

2025-10-01T00:30:29Z

e) Gifts to Spouse

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	In the event of a common accident where both spouses die, and it cannot be determined who died at what particular time, then each spouse’s estate passes as if they had outlived the other spouse (''WESA'', s 5). In the case of a joint tenancy, the property is treated as if it were held as a tenancy in common (''WESA'', s 5).		In the event of a common accident where both spouses die, and it cannot be determined who died at what particular time, then each spouse’s estate passes as if they had outlived the other spouse (''WESA'', s 5). In the case of a joint tenancy, the property is treated as if it were held as a tenancy in common (''WESA'', s 5).

	These presumptions will be subject to contrary intention made in a will or other applicable instrument. Also, if a spouse does not survive the deceased spouse by five days, that person is deemed to have predeceased the deceased spouse (''WESA'', s 10). Disposition of life insurance is dealt with differently under the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/12001_02 Insurance Act'', RSBC 2012 c 1, ss 59-64.		These presumptions will be subject to contrary intention made in a will or other applicable instrument. Also, if a spouse does not survive the deceased spouse by five days, that person is deemed to have predeceased the deceased spouse (''WESA'', s 10). Disposition of life insurance is dealt with differently under the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/12001_02 Insurance Act]'', RSBC 2012 c 1, ss 59-64.

	To ensure that property passes according to the will-maker’s intention, a 30-day survivorship clause should be added, which requires the surviving spouse to survive the will-maker by 30 days (or such period as the will-maker wishes). A sample clause when the deceased spouse leaves the residue to the surviving spouse is:		To ensure that property passes according to the will-maker’s intention, a 30-day survivorship clause should be added, which requires the surviving spouse to survive the will-maker by 30 days (or such period as the will-maker wishes). A sample clause when the deceased spouse leaves the residue to the surviving spouse is:

LSLAP: /* e) Gifts to Spouse */

2025-10-01T00:30:16Z

e) Gifts to Spouse

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	In the event of a common accident where both spouses die, and it cannot be determined who died at what particular time, then each spouse’s estate passes as if they had outlived the other spouse (''WESA'', s 5). In the case of a joint tenancy, the property is treated as if it were held as a tenancy in common (''WESA'', s 5).		In the event of a common accident where both spouses die, and it cannot be determined who died at what particular time, then each spouse’s estate passes as if they had outlived the other spouse (''WESA'', s 5). In the case of a joint tenancy, the property is treated as if it were held as a tenancy in common (''WESA'', s 5).

	These presumptions will be subject to contrary intention made in a will or other applicable instrument. Also, if a spouse does not survive the deceased spouse by five days, that person is deemed to have predeceased the deceased spouse (''WESA'', s 10). Disposition of life insurance is dealt with differently under the [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/12001_02 ''Insurance Act'', RSBC 2012 c 1], ss 59-64.		These presumptions will be subject to contrary intention made in a will or other applicable instrument. Also, if a spouse does not survive the deceased spouse by five days, that person is deemed to have predeceased the deceased spouse (''WESA'', s 10). Disposition of life insurance is dealt with differently under the ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/12001_02 Insurance Act'', RSBC 2012 c 1, ss 59-64.

	To ensure that property passes according to the will-maker’s intention, a 30-day survivorship clause should be added, which requires the surviving spouse to survive the will-maker by 30 days (or such period as the will-maker wishes). A sample clause when the deceased spouse leaves the residue to the surviving spouse is:		To ensure that property passes according to the will-maker’s intention, a 30-day survivorship clause should be added, which requires the surviving spouse to survive the will-maker by 30 days (or such period as the will-maker wishes). A sample clause when the deceased spouse leaves the residue to the surviving spouse is:
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	If the will-maker is not giving a residue but the entire estate, the appropriate words would be “to give all my assets, both real and personal, of whatsoever kind and wheresoever situate, to…”		If the will-maker is not giving a residue but the entire estate, the appropriate words would be “to give all my assets, both real and personal, of whatsoever kind and wheresoever situate, to…”

	Because of the presumption that a reference in a will to a relationship is presumed to refer to those that are legally married, '''a “common-law spouse” should not be referred to as “my husband” or “my wife” but should be identified by name, such as, “my partner, [name]'''.”		Because of the presumption that a reference in a will to a relationship is presumed to refer to those that are legally married, '''a “common-law spouse” should not be referred to as “my husband” or “my wife” but should be identified by name, such as, “my partner, [name]'''.”

	==== f) Gifts to Children ====		==== f) Gifts to Children ====

LSLAP: /* c) Appointing a Guardian */

2025-10-01T00:28:44Z

c) Appointing a Guardian

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	==== c) Appointing a Guardian ====		==== c) Appointing a Guardian ====

	A will-maker may wish to appoint a guardian for their children during their age of minority (see [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_00 ''Family Law Act'', SBC 2011, c 25 s 53(1)(a))]. Financial assistance should be provided to the guardian to cover the costs of raising the children. This arrangement is made with the Trustee. The guardian must be prepared to accept the position and should be consulted beforehand.		A will-maker may wish to appoint a guardian for their children during their age of minority (see ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/11025_00 Family Law Act]'', SBC 2011, c 25 s 53(1)(a)). Financial assistance should be provided to the guardian to cover the costs of raising the children. This arrangement is made with the Trustee. The guardian must be prepared to accept the position and should be consulted beforehand.

	A will-maker cannot grant a greater level of guardianship than they possess. Also note that under section 176 of the ''Family Law Act'', a child’s guardian does not automatically become a trustee of the child’s property. If there is any uncertainty regarding what type of guardianship the client has, or whether the client even has guardianship, the client should be referred to a family law lawyer, as LSLAP cannot deal with questions of family law.		A will-maker cannot grant a greater level of guardianship than they possess. Also note that under section 176 of the ''Family Law Act'', a child’s guardian does not automatically become a trustee of the child’s property. If there is any uncertainty regarding what type of guardianship the client has, or whether the client even has guardianship, the client should be referred to a family law lawyer, as LSLAP cannot deal with questions of family law.

LSLAP: /* 5. Remuneration and Benefits */

2025-10-01T00:28:24Z

5. Remuneration and Benefits

← Older revision		Revision as of 00:28, 1 October 2025
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	=== 5. Remuneration and Benefits ===		=== 5. Remuneration and Benefits ===

	A personal representative may be entitled to remuneration under a remuneration contract or pursuant to an express authority under the will. Otherwise, they are entitled to fair and reasonable remuneration, not to exceed 5 percent of the gross aggregate value of the estate under section 88 of [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96464_01 the ''Trustee Act'', RSBC 1996, c 464], and an annual care and management fee not exceeding 0.4 percent of the average market value of the assets. A personal representative may be a beneficiary under the will, though it is a rebuttable presumption that any benefit other than a residuary bequest under the will is in lieu of compensation. See [https://signon.thomsonreuters.com/?productid=CRSW&viewproductid=CRSWINDIGO&lr=0&culture=en-CA&returnto=https%3a%2f%2fnextcanada.westlaw.com%2fCosi%2fSignOn%3fredirectTo%3d%252fDocument%252fI10b717d123c763f0e0440003ba0d6c6d%252fView%252fFullText.html%253ftransitionType%253dDefault%2526contextData%253d(sc.Default)%2526VR%253d3.0%2526RS%253dcblt1.0%2526firstPage%253dtrue&tracetoken=0820241640030-Ah8t7HkCoc0YGe8Q962XNAb5K5l8mu3GSMUZ8967dtAMvdCKlBtfzfIpOafKpIos8OJAEXyF6OS5LlXZ90SyyLpNjBVUjMI3j20jKq35tygl2e81RCutSUcJ4TIP5rmJ-da3BnmeeBkQ1611GTDegm_vQXJPlV78HSpH4RXDEpYDxTalD8KRNHyEmMeWqfLlzl_RVIieLFVJp7UK-5wHDlE_i2zGLxzwfHlDDbX8nMWJHeaoWSRzDDiBc_qSMivjtTq6fI9eJuUUK5b_3OmgHhUiEURi4af8jXJftvrQXoL0tnR1_mzTIv7VlgIDcfu1wJ7V57z4FMflsE1IOb-waWaCJCxKNPjvMgppy3RNVOwFIKYH6exQa4-SJZfeMTk&bhcp=1 ''Canada Permanent Trust Co v Guinn''], (1981) 32 BCLR 288 (SC).		A personal representative may be entitled to remuneration under a remuneration contract or pursuant to an express authority under the will. Otherwise, they are entitled to fair and reasonable remuneration, not to exceed 5 percent of the gross aggregate value of the estate under section 88 of ''[https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96464_01 the Trustee Act]'', RSBC 1996, c 464, and an annual care and management fee not exceeding 0.4 percent of the average market value of the assets. A personal representative may be a beneficiary under the will, though it is a rebuttable presumption that any benefit other than a residuary bequest under the will is in lieu of compensation. See [https://signon.thomsonreuters.com/?productid=CRSW&viewproductid=CRSWINDIGO&lr=0&culture=en-CA&returnto=https%3a%2f%2fnextcanada.westlaw.com%2fCosi%2fSignOn%3fredirectTo%3d%252fDocument%252fI10b717d123c763f0e0440003ba0d6c6d%252fView%252fFullText.html%253ftransitionType%253dDefault%2526contextData%253d(sc.Default)%2526VR%253d3.0%2526RS%253dcblt1.0%2526firstPage%253dtrue&tracetoken=0820241640030-Ah8t7HkCoc0YGe8Q962XNAb5K5l8mu3GSMUZ8967dtAMvdCKlBtfzfIpOafKpIos8OJAEXyF6OS5LlXZ90SyyLpNjBVUjMI3j20jKq35tygl2e81RCutSUcJ4TIP5rmJ-da3BnmeeBkQ1611GTDegm_vQXJPlV78HSpH4RXDEpYDxTalD8KRNHyEmMeWqfLlzl_RVIieLFVJp7UK-5wHDlE_i2zGLxzwfHlDDbX8nMWJHeaoWSRzDDiBc_qSMivjtTq6fI9eJuUUK5b_3OmgHhUiEURi4af8jXJftvrQXoL0tnR1_mzTIv7VlgIDcfu1wJ7V57z4FMflsE1IOb-waWaCJCxKNPjvMgppy3RNVOwFIKYH6exQa4-SJZfeMTk&bhcp=1 ''Canada Permanent Trust Co v Guinn''], (1981) 32 BCLR 288 (SC).

	A trust company can be appointed Executor but usually will not consent unless the assets are substantial.		A trust company can be appointed Executor but usually will not consent unless the assets are substantial.

	'''If an LSLAP client requires a trust company to be appointed as the Executor, the client should be referred to a private lawyer.'''		'''If an LSLAP client requires a trust company to be appointed as the Executor, the client should be referred to a private lawyer.'''


	== C. Drafting the Will ==		== C. Drafting the Will ==

LSLAP: /* b) Position of Signature */

2025-09-22T09:06:35Z

b) Position of Signature

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	==== b) Position of Signature ====		==== b) Position of Signature ====

	'''Section 37(1)(b) of ''WESA'' requires the signature be at the end of the will'''. Section 39(2) defines when a will is deemed to be signed at the end and provides that a disposition made below or after the signature is of no effect. Case law has taken a liberal view of these requirements, finding a signature not at the end to have been intended to be at the end (''In the Goods of Henry Hornby'', [1946] 2 All ER 150 and ''[https://canlii.ca/t/gc1ww Currie v Potter]'' [1981] 6 WWR 377, 12 Man R (2d) 396 (Man QB)) and finding a disposition after the signature to have been intended to precede the signature (''Palin v Ponting'', [1930] para 185, considered in ''Beniston Estate v Shepherd'', (1996) 16 ETR (2d) 71 (BCSC)). However, to ensure the validity of the will and all dispositions, the will should be signed at its end, after all dispositions. When a will is more than one page, it should be signed at the end of the last page and there should be a portion of the will on the last page. The last page of the will should indicate the will-maker is signing this page as the last of all the pages constituting the will. Although not required, the will-maker and witnesses should initial the other pages of the will.		'''Section 37(1)(b) of ''WESA'' requires the signature be at the end of the will'''. Section 39(2) defines when a will is deemed to be signed at the end and provides that a disposition made below or after the signature is of no effect.

			Case law has taken a liberal view of these requirements, finding a signature not at the end to have been intended to be at the end (''In the Goods of Henry Hornby'', [1946] 2 All ER 150 and ''[https://canlii.ca/t/gc1ww Currie v Potter]'' [1981] 6 WWR 377, 12 Man R (2d) 396 (Man QB)) and finding a disposition after the signature to have been intended to precede the signature (''Palin v Ponting'', [1930] para 185, considered in ''Beniston Estate v Shepherd'', (1996) 16 ETR (2d) 71 (BCSC)).

			However, to ensure the validity of the will and all dispositions, the will should be signed at its end, after all dispositions. When a will is more than one page, it should be signed at the end of the last page and there should be a portion of the will on the last page. The last page of the will should indicate the will-maker is signing this page as the last of all the pages constituting the will. Although not required, the will-maker and witnesses should initial the other pages of the will.

	==== c) Electronic Signatures ====		==== c) Electronic Signatures ====

LSLAP: /* 6. Part Four */

2025-09-22T09:04:24Z

6. Part Four

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	=== 6. Part Four ===		=== 6. Part Four ===

	~~'''~~The fourth part of a will is concerned with the elimination of potential beneficiaries, funeral directions, and finally, execution and attestation.~~'''~~		The fourth part of a will is concerned with the elimination of potential beneficiaries, funeral directions, and finally, execution and attestation.

	==== a) Eliminating Potential Beneficiaries ====		==== a) Eliminating Potential Beneficiaries ====
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	::'''NOTE:''' '''Execute only the original will.''' Copies should not be signed by the will-maker and witnesses but can be photocopied or have facsimile signatures and dates inserted. LSLAP clinicians should write or stamp the word “copy” on all photocopies.<BR>'''There is a possibility of electronically witnessing a will.''' Electronic wills are valid wills. See below for more details.		::'''NOTE:''' '''Execute only the original will.''' Copies should not be signed by the will-maker and witnesses but can be photocopied or have facsimile signatures and dates inserted. LSLAP clinicians should write or stamp the word “copy” on all photocopies.<BR>'''There is a possibility of electronically witnessing a will.''' Electronic wills are valid wills. See below for more details.


	== D. Executing the Will ==		== D. Executing the Will ==

LSLAP: /* b) Gifts to Children */

2025-09-22T09:03:54Z

b) Gifts to Children

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	::(See 2020 CLEBC ''Wills and Personal Planning Precedents'', 20.4.)		::(See 2020 CLEBC ''Wills and Personal Planning Precedents'', 20.4.)

	~~'''~~The intended beneficiaries (i.e. the children) need not be alive at the time of execution to be included if a general term such as “children” is used.~~'''~~		The intended beneficiaries (i.e. the children) need not be alive at the time of execution to be included if a general term such as “children” is used.

	Section 153 of ''WESA'' provides that where there is no trustee in the estate, money bequeathed to a minor is paid to the Public Guardian in trust for that minor. The [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96223_01 ''Infants Act'', RSBC 1996, c 223] (s 14(1)) states that, subject to the terms of a trust set up in a will, the Public Guardian may authorize payment of all or part of the trust for the maintenance, education or benefit of the infant.		Section 153 of ''WESA'' provides that where there is no trustee in the estate, money bequeathed to a minor is paid to the Public Guardian in trust for that minor. The [https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96223_01 ''Infants Act'', RSBC 1996, c 223] (s 14(1)) states that, subject to the terms of a trust set up in a will, the Public Guardian may authorize payment of all or part of the trust for the maintenance, education or benefit of the infant.