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

* SAMPLE: “This is the last will of me, [name], of [address], British Columbia.” (See 2016 CLE Wills Personal Planning Precedents, 1-2).  

* SAMPLE: “I revoke all my prior wills and codicils.” (2016 CLE Wills and Personal Planning Precedents, 1-7).

* 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 2016 CLE Wills and Personal Planning Precedents, 3-4)

* 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.” (2016 CLE Wills and Personal Planning Precedents, 4-2)

*SAMPLE: “I give my Trustee all my property of every kind and wherever located to administer as I direct in this Will. In administering my estate, my Trustee may convert or retain my estate as set out in paragraph(s)...” (2016 CLE Wills and Personal Planning Precedents, 7-2)

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 2016 CLE Wills and Personal Planning Precedents, 50-2, to better understand how this would look.

# all estate, gift, inheritance, succession, and other death taxes or duties payable in respect of all property passing on my death in any foreign jurisdiction in order to obtain any property forming part of my estate which, in the opinion of my Trustee, has value greater than the taxes and other costs that must be paid in order to obtain it, and my Trustee may repay or delay payment of any taxes or duties” (2016 CLE Wills and Personal Planning Precedents, 8-4)"

“(b) [to pay [all/a specified portion] of the packing, freight, and insurance costs my Trustee decides [are/is] appropriate for delivering any items of the Articles as required by this will].” (2016 CLE Wills and Personal Planning Precedents, 10-2)

*SAMPLE: “to pay the following cash legacies without interest and as soon after my death as practicable to such of the following named beneficiaries who are alive on the date that is 30 days after the date of my death: to my son, <name>, the sum of ONE THOUSAND ($1,000.00) DOLLARS; to my daughter, <name>, the sum of ONE THOUSAND ($1,000.00) DOLLARS.” (See 2016 CLE Wills and Personal Planning Precedents, 12-5.)"

If the client feels that his or her 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 2016 CLE Wills and Personal Planning Precedents, 12-15.

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 1996 c 226, s 52 and 72.   

* SAMPLE: “(a) to give the residue of my estate to [residue name], if [he/she] is alive on the date that is 30 days after the date of my death; “(b) if [residue name] is not alive on the date that is 30 days after the date of my death, [specify what to do with residue].” (2016 CLE Wills and Personal Planning Precedents, 14-2) 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…”

* SAMPLE: “If <name> is not alive on the date that is 30 days after the date of my death, to divide the residue of my estate into as many equal shares as there are of my children who are alive on the date that is 30 days after the date of my death, except that if any child of mine has died before that date and one or more of his or her children are alive on that date, that deceased child will be considered alive for the purposes of the division.” (2014 CLE Wills Precedents – An Annotated Guide, 16-26. For updated samples, see also 2016 CLE Wills and Personal Planning Precedents – An Annotated Guide, 16-26)

* Give the Trustee discretion to invest outside the Trustee Act, only if he or she is acquainted with business matters.

# Regardless of paragraph X (a) and (b) above, and at any time my Trustee decides, pay some or all of that part of my estate to that person’s parent or guardian, to hold, and if that parent or guardian decides, apply some or all for that person’s benefit.” (See 2014 CLE Wills Precedents – An Annotated Guide, 19-4. For updated samples, see also 2016 CLE Wills and Personal Planning Precedents – An Annotated Guide, 19-4.)

Section 153 of WESA provides that where there is no trustee in the estate, money bequeathed to a minor is paid to the Public Guardian in trust for that minor. The Infants Act (s 14(1)) states that, subject to the terms of a trust set up in a will, the Public Guardian may authorize payment of all or part of the trust for the maintenance, education or benefit of the infant. 

It is possible for a minor to receive monetary gifts before he or she reaches the age of 19. However, before probate will be granted, the Public Guardian and Trustee of B.C. 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. They will consider factors such as the amount of the gift and its intended purpose.

* SAMPLE: “When my Trustee divides or distributes my estate, my Trustee may decide which assets of my estate (including, without limitation, money, publicly traded securities or other property, real or personal) to allocate to any share or interest in my estate (and not necessarily equally among any shares or interests) and the value of each of those assets. Whatever value my Trustee attributes to those assets will be final and binding on everyone interested in my estate.” (2016 CLE Wills and Personal Planning Precedents – An Annotated Guide, 19-7)

* SAMPLE: “I want my remains to be [buried/cremated]. I hope that if any funeral or memorial service is held as a result of my death it will be conducted with unostentatious simplicity.” (See 2016 CLE Wills and Personal Planning Precedents, Chapter 20.)

:(2016 CLE ''Wills Personal Planning Precedents'', 21-5)

According to ''Re Johnston Estate'', 2017 BCSC 272, the rule in ''Cherry v Boultbee'' applies in Canada. This means that the beneficiary is required to bring his or her debts towards the estate into account, even if the debt claim would otherwise be statute barred by the limitations act. Re Johnston Estate states that “the purpose of the rule was to prevent a beneficiary who owed money to an estate from receiving more than his or her fair share of the estate.”

There must be a signature or a mark on the will intended to be a signature. Thus, something less than a signature, e.g. initials, will be sufficient where it is intended to represent the name and to be a signature (In the Goods of Chalcraft, [1948] 1 All ER 700; Re Schultz Estate, [1984] 4 WWR 278 (Sask Surr Ct)). Where necessary, the will-maker’s hand may be guided by another person; however, this requires the will-maker’s clear direction or consent (Re: White, (1948) 1 DLR 572 (NS App Div)).

The will-maker need not sign the will him or herself. Section 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 his or her 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.  

Section 37(1)(b) of WESA requires the signature be at the end of the will. Section 39 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 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.

The will-maker must make or acknowledge the signature in the joint presence of two attesting witnesses present when the will is signed (WESA, s 37) A beneficiary of the will should never witness the will, as it may void the gift they receive through the will (WESA, s 40 & s 43).  It will be sufficient if the will-maker has made his or her signature in the joint presence of the witnesses. If he or she has not, the will-maker must acknowledge the signature in the witnesses’ presence, as it becomes a question of fact that witnesses must have actually seen or been able to see the signature when the Will-maker acknowledged it (see Re Schafner, (1956) 2 DLR (2d) 593 (NSSC)).  

The leading case on section 58 is Estate of Young, (2015) BCSC 182, in which the court considers case law from Manitoba considering a similar provision (section 22 of The Wills Act, CCSM W150) in order to interpret section 58.  

Although section 58 gives the court broad powers to give effect to the intentions of the will-maker, this power does have limitations. Therefore, every effort should be made to follow the proper procedure when drafting a will in order to avoid future complications. As the court notes in Estate of Young, “[w]hile imperfect or even non compliance with formal testamentary requirements may be overcome by application of a sufficiently broad curative provision, the further a document departs from the formal requirements the harder it may be for the court to find it embodies the deceased’s testamentary intention.”