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

The will-maker should appoint a person that is willing to act, familiar with the estate, young enough to outlive them, and preferably living in BC. An alternative Executor should also be appointed in case the first Executor is unavailable. The Executor, if they accept the position, must carry out the duties of Executor. The Executor may renounce, under section 104 of ''WESA'', if they have not already intermeddled with the estate. In this scenario, the administration of the estate passes as if they have never been appointed Executor.

=== 3. Administrator ===

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 ====

*'''NOTE''': There is an important distinction that must be made between the duties and powers of the Executor. On the one hand, duties are non-discretionary. They dictate a course of action that the Executor must take according to the intentions of the will-maker as set out in the will. On the other hand, powers are discretionary. They allow the executor to make decisions within a range of possibilities according to the intentions of the will-maker.  

==== b) Gifts to Children ====

It is possible for a minor to receive monetary gifts before they reach 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. Factors such as the amount of the gift and its intended purpose will be considered.

==== c) Valuation of Estate ====

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:(2019 CLE ''Wills Personal Planning Precedents'', 22.35)

'''Temporary Ability to Electronically Witness''.  In the event that the Will was witnessed electronically (see commentary in Section D. 2.(a) below regarding electronic witnessing during a declared state of emergency), then to be valid, the attestation clause must be revised to include a statement that it was signed and witnessed in accordance with Ministerial Order No. M161.

== D. Executing a Will ==

The will-maker need not sign the will themselves. Sections 1(1) and (2) of ''WESA'' provides that the “will-maker’s signature” includes “a signature made by another person in the will-maker's presence and by the will-maker's direction.” Where someone else signs on behalf of the will-maker, there must be some act or word by the will-maker constituting a direction or request. When someone else signs, that person may sign in either the will-maker’s name or their own name, but this circumstance should be noted in the attestation clause (''Re Fiszhaut Estate'', (1966) 55 WWR 303 (BCSC)). If this issue should arise, there must be further review to ensure the signature’s legal validity.  

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

'''Please note that if, at the time of execution, BC is declared to be in a “state of emergency”, as defined by the ''Emergency Program Act'', RSBC 1996, c. 11, and if Ministerial Order No. M161 is still in force, then the witness requirements may also be satisfied if witnesses are electronically present at the same time (i.e. using videoconference technologies such as FaceTime, Zoom, or Skype) and one of the witnesses is a lawyer.  These changes were brought in during the COVID-19 state of emergency to reflect the challenge of witnesses being together while at the same time social distancing.'''  

==== b) Competence of Witnesses ====

There is one exception to this rule.  Section 43(4) of ''WESA'' provides that, if the court is satisfied that the will-maker intended to make the gift to the person, the gift to the witness will not be void. In ''Bach Estate, Re'', 2017 BCSC 548 at para 54, the Court held that section 43(4) of ''WESA'' empowers the court to declare a presumptively void gift valid if it “is satisfied the document represents the testamentary intentions of that deceased person”. The court also held that “extrinsic evidence is admissible on the question of testamentary intent, and the Court is not limited to the evidence that an inspection of the document provides.” See also ''Re Estate of Le Gallais'', 2017 BCSC 1699.  

== F. Court’s Power to Cure Deficiencies and Rectify Wills ==

The court observes that the curative power of section 58 is very fact-sensitive and that the purpose of the section is to cure formal invalidities and not to be used to uphold a will that is invalid for any substantive reasons. For example, the court can uphold a will that does not adhere to the format that a will should take under ''WESA''; however, it cannot uphold a will that is deemed invalid because of testamentary incapacity or undue influence.

There are two principal issues for consideration that the court takes into account when assessing whether an impugned document should be recognized: