Difference between revisions of "Making and Executing a Will (16:III)"

Section 37 of WESA requires that a will be in writing. The will-maker and two or more witnesses in the presence of the will-maker must sign the will. It may be typed or handwritten, or both, as in the case of printed will forms.  

If the will is contested, the estate may be ordered to pay the legal fees and the beneficiaries will receive a reduced amount. However, where Executors are also beneficiaries and have a personal interest in the outcome of the litigation, courts may be reluctant to order costs be paid out of the estate: see ''Re Lapka Estate'', (2005) 15 ETR (3d) 234 (BCSC) and ''Re Wilcox Estate'', (2005) 13 ETR (3d) 120 (BCSC).

A will contains instructions about what should happen after the will-maker’s death. As a result, keep in mind the importance of precision and consistency when drafting a will. Generally, there are several paragraphs common to all wills. To see full will templates, consult the sources on page 4. The CLEBC’s Wills Precedents is especially useful.

In addition, the top of each page of the will should identify the page by number and say “the Last Will and Testament of <will-maker’s name>” and should be initialled by the will-maker and witnesses.

* SAMPLE: “This is the last will of me, [name], of [address], British Columbia.” (See ''2016 CLE Wills Personal Planning Precedents'', 1-2).  

* SAMPLE: “I revoke all my prior wills and codicils.” (''2016 CLE Wills and Personal Planning Precedents'', 1-7).

Also note that this clause may need modification in some situations (e.g. if the client has a will in another jurisdiction disposing of assets in that jurisdiction). See page 1-7 of the 2016 edition of the CLE Wills and Personal Planning Precedents. If such a situation applies to a client, please refer them to a private lawyer.  

A testator cannot grant a greater level of guardianship than he or she possesses. 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 lawyer, as LSLAP cannot deal with questions of family law.  

* SAMPLE: “I appoint [guardian name] to be the guardian of my minor children. It is my hope that, in accordance with the provisions of the ''Family Law Act'' of British Columbia, [guardian name] will appoint a guardian in [his/her] will, or otherwise, to be the guardian of my minor children.” (''2016 CLE Wills and Personal Planning Precedents'', 4-2)

*SAMPLE: “I give my Trustee all my property of every kind and wherever located to administer as I direct in this Will. In administering my estate, my Trustee may convert or retain my estate as set out in paragraph(s)...” (''2016 CLE Wills and Personal Planning Precedents'', 7-2)

*SAMPLE: “to pay the following cash legacies without interest and as soon after my death as practicable to such of the following named beneficiaries who are alive on the date that is 30 days after the date of my death: to my son, <name>, the sum of ONE THOUSAND ($1,000.00) DOLLARS; to my daughter, <name>, the sum of ONE THOUSAND ($1,000.00) DOLLARS.” (See ''2016 CLE Wills and Personal Planning Precedents'', 12-5.)"

 

If the client feels that his or her estate may not be large enough to pay all desired legacies, the client may wish to express an order of priority for the legacies. See ''2016 CLE Wills and Personal Planning Precedents'', 12-15.

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 ''Insurance Act'', RSBC 1996 c 226, s 52 and 72.   

* SAMPLE: “(a) to give the residue of my estate to [residue name], if [he/she] is alive on the date that is 30 days after the date of my death; “(b) if [residue name] is not alive on the date that is 30 days after the date of my death, [specify what to do with residue].” (''2016 CLE Wills and Personal Planning Precedents'', 14-2) 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…”

* SAMPLE: “If <name> is not alive on the date that is 30 days after the date of my death, to divide the residue of my estate into as many equal shares as there are of my children who are alive on the date that is 30 days after the date of my death, except that if any child of mine has died before that date and one or more of his or her children are alive on that date, that deceased child will be considered alive for the purposes of the division.” (''2014 CLE Wills Precedents – An Annotated Guide'', 16-26. For updated samples, see also ''2016 CLE Wills and Personal Planning Precedents – An Annotated Guide'', 16-26)

If the children are under 19, usually a trust should be created for them until they reach majority age. See part k, Gifts to Children, immediately below. If a trust needs to be created for a minor child, the student should refer the client to a private lawyer.

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 ''Infants Act'' (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 a will-maker wants a clause to limit the Trustee’s investment powers, a wills precedent book must be consulted. If any of the persons the will-maker wishes to benefit are stepchildren, the will should clearly identify that person by name rather than merely by relationship (i.e. “children”). '''Stepchildren are not considered children under WESA, and should be referred to by name.''' Adopted children, however, are for all purposes the children of the adopting parents, and not the legal children of the natural birth parents, per section 3 of WESA.  

It is possible for a minor to receive monetary gifts before he or she reaches the age of 19. However, before probate will be granted, the Public Guardian and Trustee of BC must be notified. The Trustee’s foremost concern is protecting the child, and it is in the Trustee’s discretion whether or not a gift will be given. They will consider factors such as the amount of the gift and its intended purpose.

* SAMPLE: “When my Trustee divides or distributes my estate, my Trustee may decide which assets of my estate (including, without limitation, money, publicly traded securities or other property, real or personal) to allocate to any share or interest in my estate (and not necessarily equally among any shares or interests) and the value of each of those assets. Whatever value my Trustee attributes to those assets will be final and binding on everyone interested in my estate.” (''2016 CLE Wills and Personal Planning Precedents – An Annotated Guide'', 19-7)

See Part VI-A, Wills variation claims for more information regarding why eliminating potential beneficiaries can be problematic.  

* SAMPLE: “I want my remains to be [buried/cremated]. I hope that if any funeral or memorial service is held as a result of my death it will be conducted with unostentatious simplicity.” (See ''2016 CLE Wills and Personal Planning Precedents'', Chapter 20.)

The execution and attestation clause must be on a page with a portion of the will. Never put it on a separate page and always have the will-maker sign it at the end of the will in the presence of two disinterested witnesses; there must be room for the two witnesses’ signatures (see Section III.E: Executing and Attesting the Will).