Difference between revisions of "Making and Executing a Will (16:III)"
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In addition, the top of each page of the will should identify the page by number and indicate “the Last Will and Testament of <will-maker’s name>” and should be initialled by the will-maker and witnesses. | In addition, the top of each page of the will should identify the page by number and indicate “the Last Will and Testament of <will-maker’s name>” and should be initialled by the will-maker and witnesses. | ||
=== 3. Part | === 3. Part One === | ||
The first part of the will deals with initial matters. The opening clause of a will is called the “domicile clause” and identifies the will-maker and the place where the will was made. The first paragraph is known as the revocation clause, which cancels any wills previously made. The next paragraph appoints the Executor and Trustee and an alternate Executor and Trustee of the will. Following this paragraph is the guardian clause, which appoints someone to look after any minor children. This is important in cases where the death of both parents occurs at the same time. | The first part of the will deals with initial matters. The opening clause of a will is called the “domicile clause” and identifies the will-maker and the place where the will was made. The first paragraph is known as the revocation clause, which cancels any wills previously made. The next paragraph appoints the Executor and Trustee and an alternate Executor and Trustee of the will. Following this paragraph is the guardian clause, which appoints someone to look after any minor children. This is important in cases where the death of both parents occurs at the same time. | ||
==== a) | ==== a) Opening and Revocation Clause ==== | ||
The opening clause is fairly standard. It identifies the will-maker, gives his or her place of residence and may state his or her occupation: | The opening clause is fairly standard. It identifies the will-maker, gives his or her place of residence and may state his or her occupation: | ||
* SAMPLE: “This is the last will of me, [name], of [address], British Columbia.” (See '' | * SAMPLE: “This is the last will of me, [name], of [address], British Columbia.” (See ''2019 CLE Wills Personal Planning Precedents'', 1.5). | ||
Though the last testamentary disposition of property is generally the effective one, it is standard practice to insert a general revocation clause that revokes all previous wills and codicils. This clause | Though the last testamentary disposition of property is generally the effective one, it is standard practice to insert a general revocation clause that revokes all previous wills and codicils. This clause should be included even though the will-maker has never before made a will. It follows the opening clause. | ||
* SAMPLE: “I revoke all my prior wills and codicils.” ('' | * SAMPLE: “I revoke all my prior wills and codicils.” (''2019 CLE Wills and Personal Planning Precedents'', 1.11). | ||
The revocation clause | The revocation clause will not revoke other non-will testamentary dispositions such as designations made on insurance policies, RRSPs, etc. It is more effective to designate the estate as the beneficiary to such policies or RRSP if the will-maker wishes for these monies to fall into the estate. | ||
This clause may need to be modified in some situations. For example, a will-maker may have a will in another jurisdiction disposing of assets in that jurisdiction. One should be careful to not unintentionally revoke wills that deal solely with assets in another jurisdiction. Further, a will-maker may elect to create dual wills for the purpose of separating assets that require probate (e.g. real property and most bank accounts) and those do not require probate (e.g. shares in private companies). Dual wills can help save probate fees and were given effect under section 122(1)(b) of WESA.See | This revocation clause may need to be modified in some situations. For example, a will-maker may have a will in another jurisdiction disposing of assets in that jurisdiction. One should be careful to not unintentionally revoke wills that deal solely with assets in another jurisdiction. Further, a will-maker may elect to create dual wills for the purpose of separating assets that require probate (e.g. real property and most bank accounts) and those do not require probate (e.g. shares in private companies). Dual wills can help save probate fees and were given effect under section 122(1)(b) of WESA. See s 7.5 of the 2019 edition of the CLE ''Wills and Personal Planning Precedents''. A will-maker who wishes to create dual-wills should seek assistance from a lawyer. | ||
==== b) Appointing the Executor and Trustee ==== | ==== b) Appointing the Executor and Trustee ==== | ||
* SAMPLE: “(a) I appoint my [relationship] [full name of executor/trustee] (“[executor/trustee name]”) of [executor/trustee’s address] to be my Trustee. (b) If my [relationship] [executor/trustee name] is unwilling or unable to act or continue to act as my Trustee, I appoint my [relationship] [full name of alternative executor/trustee] of [alternative executor/trustee’s address] to be my Trustee.” (See '' | * SAMPLE: “(a) I appoint my [relationship] [full name of executor/trustee] (“[executor/trustee name]”) of [executor/trustee’s address] to be my Trustee. (b) If my [relationship] [executor/trustee name] is unwilling or unable to act or continue to act as my Trustee, I appoint my [relationship] [full name of alternative executor/trustee] of [alternative executor/trustee’s address] to be my Trustee.” (See ''2019 CLE Wills and Personal Planning Precedents'', 3.5) | ||
The Executor also takes the role of a Trustee during the administration of the estate. However, the will-maker may wish to establish a continuing trust and thus appoint different people to be Executor and Trustee of a specific trust. A Trustee is appointed where the will-maker wishes to prevent the beneficiaries from squandering all or part of the estate and to provide for more capable management funds or property, or to provide for infant children until they attain the age of majority. A trustworthy and competent person should be chosen to be the Trustee. This person will have legal title to the property. | The Executor also takes the role of a Trustee during the administration of the estate. However, the will-maker may wish to establish a continuing trust and thus appoint different people to be Executor and Trustee of a specific trust. A Trustee is appointed where the will-maker wishes to prevent the beneficiaries from squandering all or part of the estate and to provide for more capable management funds or property, or to provide for infant children until they attain the age of majority. A trustworthy and competent person should be chosen to be the Trustee. This person will have legal title to the property. | ||
A bank or trust company may also be appointed. Their expertise and trustworthiness make them an excellent choice, | A bank or trust company may also be appointed. Their expertise and trustworthiness make them an excellent choice, although the cost may be prohibitive, especially with small and simple estates. | ||
==== c) Appointing a Guardian ==== | ==== c) Appointing a Guardian ==== | ||
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A will-maker may wish to appoint a guardian for his or her children during their age of minority (see ''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 his or her children during their age of minority (see ''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 | A will-maker 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 law lawyer, as LSLAP cannot deal with questions of family law. | ||
Those appointing a guardian should be aware that the court could review such a decision. As well, members of the family can apply to have a decision in the will set aside. However, it must be strictly proven that the guardian appointed by the will-maker is unsuitable for the position. | Those appointing a guardian should be aware that the court could review such a decision. As well, members of the family can apply to have a decision in the will set aside. However, it must be strictly proven that the guardian appointed by the will-maker is unsuitable for the position. | ||
* 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.” ('' | * 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.” (''2019 CLE Wills and Personal Planning Precedents'', 4.9) | ||
For more information, see Chapter 5: Children and the Law and Chapter 3: Family Law. | For more information, see '''Chapter 5: Children and the Law''' and '''Chapter 3: Family Law'''. | ||
=== 4. Part II === | === 4. Part II === | ||