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Difference between revisions of "Making and Executing a Will (16:III)"
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Making and Executing a Will (16:III) (view source)
Revision as of 22:27, 15 August 2019
, 22:27, 15 August 2019→1. Intention and Precision
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A fundamental rule of drafting is to ascertain the will-maker’s intent regarding how the estate will be divided. Have the will-maker consider present desires as well as future possibilities. A beneficiary may predecease the will-maker and the will-maker may want the deceased’s share to go to someone else. Potential will variation claims must be anticipated. A qualified lawyer should be consulted if a wills variation claim may occur. See Section VI: Will Variation Claims, to determine when this issue might arise. | A fundamental rule of drafting is to ascertain the will-maker’s intent regarding how the estate will be divided. Have the will-maker consider present desires as well as future possibilities. A beneficiary may predecease the will-maker and the will-maker may want the deceased’s share to go to someone else. Potential will variation claims must be anticipated. A qualified lawyer should be consulted if a wills variation claim may occur. See Section VI: Will Variation Claims, to determine when this issue might arise. | ||
Use clear, 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. | 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. | ||
Do not use words and phrases that are open to more than one interpretation. Be clear in describing property and time periods. Remember that certain terms used to describe property or relationships have precise legal meanings. Do not use them casually. Be careful describing property and beneficiaries. For example, the clause “I give the assets in my bank account to John” is poorly drafted. It may mean a savings account, checking account, or both. John may be a son, nephew or lover. | Do not use words and phrases that are open to more than one interpretation. Be clear in describing property and time periods. Remember that certain terms used to describe property or relationships have precise legal meanings. Do not use them casually. Be careful when describing property and beneficiaries. For example, the clause “I give the assets in my bank account to John” is poorly drafted. It may mean a savings account, checking account, or both. John may be a son, nephew or lover. | ||
It is well-settled that courts will allow a successful party in litigation to recover costs from an unsuccessful party. However, the rule that costs follow the event is generally modified in wills variation and interpretation actions. In the absence of misconduct, where the opinion, advice or direction of the Court is sought on a question relating to the validity or interpretation of a will, the Court may order the costs of all parties to be paid out of the estate.. See Wilson v Lougheed, 2012 BCSC 1166. | It is well-settled that courts will allow a successful party in litigation to recover costs from an unsuccessful party. However, the rule that costs follow the event is generally modified in wills variation and interpretation actions. In the absence of misconduct, where the opinion, advice or direction of the Court is sought on a question relating to the validity or interpretation of a will, the Court may order the costs of all parties to be paid out of the estate.. See Wilson v Lougheed, 2012 BCSC 1166. | ||
