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

Nevertheless, a student or lawyer should always assess the will-maker’s capacity when taking instructions from the will-maker. This decision should be based on the will-maker’s instructions, not any assertion from the will-maker that they are capable. To this end, avoid asking the will-maker direct questions about capacity, such as “are you capable?”

==== c) Presumption of Validity ====

A will or a portion of it that is made as a result of undue influence is not valid. Undue influence is not mere persuasion but is physical or psychological '''coercion'''. There must be capacity to influence and the influence must have produced a will that does not represent the will-maker’s intent. Section 52 of WESA now provides that, if it is shown that the will-maker was in a position where the potential for domination or dependence was present, the burden shifts to the party seeking to defend the will to show that the will was not procured through undue influence. A spouse, parent, or child, etc. may put their claims before the will-maker for recognition. This does not constitute undue influence unless it amounts to coercion. If the will-maker continues to be capable of making decisions freely, the advice or persuasion does not amount to undue influence. See ''[https://www.canlii.org/en/bc/bcsc/doc/2013/2013bcsc976/2013bcsc976.html?autocompleteStr=Leung%20v%20Chang%2C%202013%20BCSC%20976%20&autocompletePos=1 Leung v Chang]'', 2013 BCSC 976 for a framework for the burden of proof in litigation regarding contested wills.  

::a) No actual influence was used or there was a lack of opportunity to influence;  

Notwithstanding section 52 of ''WESA'', an individual challenging a will on the basis of undue influence should have sufficient evidence to establish actual undue influence – in challenging the validity of a will, it may be insufficient to simply point to a relationship where there was a potential for the testator’s domination or dependence, without more. An allegation of undue influence is a serious allegation which should not be made lightly. See ''[https://www.canlii.org/en/bc/bcsc/doc/2018/2018bcsc1032/2018bcsc1032.html?autocompleteStr=Ali%20v%20Walter%20Estate%2C%202018%20BCSC%201032&autocompletePos=1 Ali v Walter Estate]'', 2018 BCSC 1032, ''[https://www.canlii.org/en/ca/scc/doc/1991/1991canlii69/1991canlii69.html?autocompleteStr=Geffen%20v%20Goodman%20Estate%2C%20%5B1991%5D%202%20SCR%20353&autocompletePos=1 Geffen v Goodman Estate]'', [1991] 2 SCR 353, ''[https://www.canlii.org/en/ca/scc/doc/2017/2017scc61/2017scc61.html Cowper-Smith v Morgan]'', 2016 BCCA 200.

The will drafter should ensure that the will represents the will-maker’s intentions and that they are not being coerced into making the will or disposition against their wishes. This is especially relevant where the aged or infirmed are concerned.

== B. Finding and Appointing a Personal Representative ==

The Executor or Administrator is responsible for the administration of the estate, including inventorying and realizing assets, distributing assets, and winding up the estate.

=== 4. Personal Representative is Accountable ===

=== 5. Remuneration and Benefits ===

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

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.  

=== 1. Intention and Precision ===

Use clear and precise language. Those drafting a will should make an effort to use fewer technical legal terms and more common language. The concepts of Latin maxims may be difficult for some to comprehend and cause unnecessary frustration. Using simple language will reassure clients that those who read it will understand what is being conveyed.  

'''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 opening clause is fairly standard. It identifies the will-maker, gives their place of residence and may state their occupation:

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.

==== b) Appointing the Executor and Trustee ====

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.

This clause is usually inserted even though the Executor/Trustee is legally required to pay debts outstanding at death, reasonable funeral expenses, taxes, and legal fees out of the estate.

:(2020 CLEBC ''Wills and Personal Planning Precedents'', 8.4)

:'''SAMPLE:''' “to pay:

If the client feels that their 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 2020 CLEBC ''Wills and Personal Planning Precedents'', 13.4.

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 2012 c 1, ss 59-64.   

:'''SAMPLE:''' “(a) to give the residue of my estate to [residue name], if [they] are alive on the date that is 30 days after the date of my death;  

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’s spouse does not survive the will-maker, often the will-maker will want to leave the estate to their children. A will-maker must decide whether they wish to divide the estate between only those children alive at the will-maker’s death, or if they wish to benefit the issue of any pre-deceased child as well (i.e. grandchildren).

=== 5. Part Three ===

'''The third part of a will deals with the administration of the estate. This section outlines the Trustee’s general powers and responsibilities:''' trusts for minors, payments for minors, and valuation of the estate. The only implied power of an Executor to deal with assets is a power to “call in” and sell the assets which are not specifically gifted in the will. Therefore, a well-drafted will should involve several express powers so that the Executor can efficiently deal with the assets of the estate.

==== a) Eliminating Potential Beneficiaries ====

==== b) Funeral Directions ====

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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. Students should write or stamp the word “copy” on all photocopies.

=== 1. Presumption of Proper Execution ===

Bill 21, ''Wills, Estates and Succession Amendment Act'', 5th Sess, 41st Parl, British Columbia, 2020, (“''Bill 21''”), received Royal Assent on August 14, 2020, however at the time of this publication most sections of ''Bill 21'' have not yet come into force. Currently, a will must be in writing in order to be valid pursuant to section 37(1)(a) of the ''WESA''. If the relevant sections of ''Bill 21'' come into force in the future, it will be possible to satisfy the writing requirement if the will is in electronic form.

The amendments in ''Bill 21'' will also permit the will-maker and witnesses to use electronic signatures to satisfy the signature requirements in sections 37(1)(b) and (c) of ''WESA''. Note that section 39(1) of ''WESA'' will not apply to electronic signatures, so it will be important to place the electronic signature in the proper location to make it clear that the will-maker intended to give effect to the entire will. Similar to the amendments allowing for electronic wills, the sections of ''Bill 21'' allowing for electronic signatures have also not yet come into force.

== E. Attesting the Will ==

==== a) Meaning of Signature ====

:'''NOTE:''' ''Bill 21'' includes an amendment to ''WESA'' allowing for electronic signatures, however the amendment has not yet come into force at the time of this publication. If the amendment is brought into force, section 39(1) of ''WESA'' will not apply to electronic signatures so it will be particularly important to ensure that electronic signatures are properly placed to indicate that the will-maker intended to give effect to the entire will. See '''Section III.D.2: Electronic Wills''', for more information.

==== a) Generally ====

Section 43 of ''WESA'' provides that a gift to a witness, or the spouse of a witness, to a testamentary document is void. Section 43(3) of ''WESA'' explicitly provides that, even if such a gift is void, this has no effect on the validity of the remainder of the will.  

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

This is a significant provision, as it allows the courts to consider evidence that would otherwise not be admissible in order to determine the intent of the will-maker.

'''After the will is complete, a Wills Notice should be filed with the Department of Vital Statistics in Victoria''' (''WESA'', at s 73). The purpose of the notice is to record the existence and location of the will and make it easier to find the will after the will-maker’s death. A will-maker is not required by law to file a Wills Notice. However, it is recommended as a wills search must be undertaken by the Executor or Administrator before the Grant of Probate or Grant of Administration are issued.

'''A Wills Notice should be filed whenever a will is made, revised, revoked or moved or whenever a codicil is executed'''. In order to file a Wills Notice, the will-maker must have the following information:

* Location of the will; and

There are three ways of filing a Wills Notice: either online, by mail, or in person. All three methods require a $17.00 charge for filing, payable to the Minister of Finance. Forms are available from '''BC Government Forms Finder''', website: https://www2.gov.bc.ca/gov/content/home/forms-a-z. If filing by mail is preferred, then the VSA 531 form must be completed and mailed to '''Vital Statistics Agency''', PO Box 9657 Stn Prov Govt, Victoria, BC V8W 9P3.