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

*SAMPLE: “(a) to transfer and deliver absolutely my [article 1] to my [relationship] [article 1 name], if [he/she] is alive on the date that is 5 days after the date of my death.

“(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:  

(i) $ [amount] to [name of recipient of cash gift] of [address], if [he/she] is alive on the date that is 30 days after the date of my death;

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 ''2017 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, ss 52 and 72.

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 husband leaves the residue to the wife is:

* 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].” (''2017 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…”

Because of the presumption that a reference in a will to a relationship is presumed to refer to legitimate relationships, a “common law spouse” should not be referred to as “my husband” or “my wife” but should be identified by name.  

* SAMPLE: “If <residue 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 [between/among] those of my children who are alive on the date that is 30 days after the date of my death, except that if [either/any] of them 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.” (''2017 CLE Wills and Personal Planning Precedents – An Annotated Guide'', 16-9)

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

=== 5. Part III ===

* Leave a deceased beneficiary’s share to his or her children if he or she dies before reaching the age of vesting. If he or she has none, then the trust should direct who receives this bequest.

# 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.)

* 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.” (''2017 CLE Wills and Personal Planning Precedents – An Annotated Guide'', 19-7)

=== 6. Part IV ===

See Part VI-A, Wills Variation Claims for more information regarding why eliminating potential beneficiaries can be problematic.  

* 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 ''2017 CLE Wills and Personal Planning Precedents'', Chapter 20.3)

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 disinterested witnesses; there must be room for the two witnesses’ signatures (see Section III.E: Executing and Attesting the Will).

| style="width:25%;" | We were both present, at the request of ''[will-maker name]'',  and we were both 19 years of  age or older, when this Will  was read to ''[him/her]'' by ''[signor]''.  ''[Will-maker name]'' appeared  to thoroughly understand it  and approve its contents.  We remained present  while ''[signor]'', also in the  presence of ''[will-maker name]'',  and at ''[his/her]'' direction, signed this Will with the name  of ''[will-maker name]''. We then  signed as witnesses in the  presence of both ''[will-maker  name]'' and ''[signor]'' and in the  presence of each other.   

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

Inclusion of a signed attestation clause will raise a presumption that the will is properly executed (''Re Gardner'', [1935] OR 71 (Ont CA)). An attestation clause is a clause at the end of the will where the will-maker signs his or her name testifying to the fact that he or she is signing the approved will. This is also the place where the two witnesses must sign to show that they have witnessed the will-maker approving of the will.  

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.  

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'', ss 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)).  

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.” See also Hadley Estate, Re, 2017 BCCA 311.

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 Letters of Probate or Letters of Administration are granted.

There are three ways of filing a Wills Notice, either online, by mail, or in person. All three of these methods require a $17.00 charge for filing, payable to the Minister of Finance. Forms are available from: Vital Statistics Agency, Web site: www.vs.gov.bc.ca/forms/index.html. 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, 818 Fort Street, Victoria, BC V8W 9P3.

Finally, VSA 531 can be submitted in person to any service BC locations. Locations can be found at http://www2.gov.bc.ca/gov/content/governments/organizational-structure/ministries-organizations/ministries/technology-innovation-and-citizens-services/servicebc