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

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.

'''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.

==== 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.

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.  

   

For more information, see '''Chapter 3: Family Law'''.

This clause gives the Executor/Trustee the power to deal with the estate as they see fit, in keeping with the will-maker’s wishes under the will and the Trustee’s fiduciary duties.

Immediately after this clause, the student should insert the clause “I direct my Trustee to hold that property on the following trusts:” See the sample will template in 2020 CLEBC ''Wills and Personal Planning Precedents'', 48.2, to better understand how this would look.

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.

# my debts, including income taxes payable up to and including the date of my death [and any financial charges with respect to any property which, pursuant to this will, is transferred free and clear to a beneficiary for beneficiaries];

# my funeral and other expenses related to this Will and my death; and

::C. any gift made by me in my lifetime; and

::D. any benefit arising by survivorship,

==== c) Items-in-Kind ====

The will-maker may wish to make a specific bequest of a personal article. The appropriate item must be listed.

==== d) Cash Legacies ====

The will-maker may wish to make a specific bequest of cash legacies.

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.

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:

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).

[The will should then go on to detail the terms upon which the shares will be distributed to the beneficiaries: e.g. the age at which the trustee should pay out the shares.]

'''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.

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

* Give the Trustee discretion to invest outside the ''Trustee Act'', only if they are acquainted with business matters.

::(a)  pay or use so much of the income and capital of that person’s part of my estate as my Trustee decides for that person’s benefit until that person reaches 19;

::(b) add any income not paid or used in any year to the capital of that person’s part of my estate;  

::(c) give that person what remains of that person’s part of my estate when that person reaches 19, but if that person dies before reaching 19, give what remains of that person’s part of my estate to that person’s estate; and  

::(d) at any time my Trustee decides, my Trustee may give some or all of that part of my estate to that person’s parent or guardian as trustee [, other than [name of person to exclude, if any,]] to receive and hold that part of my estate for that person’s benefit on the same terms as set out in paragraphs (a), (b) and (c) above. When the parent or guardian receives that part of my estate, my Trustee is discharged in connection with that part of my estate and need not inquire about how it 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.'''

This section of a will outlines the Trustee’s general power and discretion to fix the value of the estate.

   

=== 6. Part Four ===

'''These directions are not binding''', but the Executor must arrange for a funeral that is fitting having regard to the will-maker’s position and manner of life. Prudent practice is to advise the will-maker that they should make these wishes known to the Executor.

==== c) Execution and Attestation Clause ====

'''The execution and attestation clause should not be on a page of its own. It must follow the final clause of the will on the same page'''. This is required to prevent the insertion of additional clauses after the will is signed. Always have the will-maker sign it at the end of the will in the presence of two witnesses who do not have an interest in the estate (i.e. is not a beneficiary or executor) and are not the spouses of any individual who has an interest in the estate; there must be room for the two witnesses’ signatures (see '''Section III.D: Executing the Will and Section III.E: Attesting the Will''').

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:“I have signed this Will on ''[month, day, year]''.

:(2020 CLEBC ''Wills Personal Planning Precedents'', 22.35)

== D. Executing a 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] All ER 150 and ''[https://www.canlii.org/en/mb/mbqb/doc/1981/1981canlii3424/1981canlii3424.html?autocompleteStr=Currie%20v%20Potter%20%5B1981%5D%206%20WWR%20377%20(Man%20QB)&autocompletePos=1 Currie v Potter]'' [1981] 6 WWR 377 (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.

=== 2. Signature of Witnesses ===