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

According to the ''Goodfellow'' case and subsequent decisions, to have testamentary capacity a will-maker must:

The law presumes that a will-maker has the requisite capacity if a will was duly executed in accordance with the formal statutory requirements after being read over to a will-maker who appeared to understand it.   

However, a student or lawyer taking instructions from the will-maker should, nevertheless, always assess the will-maker’s capacity. 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?”

Some helpful lines of inquiry to assess capacity include: whether the will-maker can understand the nature of the testamentary act (that they are making a will), can recall the property, and can comprehend that they are excluding possible claimants under intestacy or through a wills variation claim. Delusions or partial insanity will not destroy testamentary capacity unless they directly affect testamentary capacity or influence the dispositions in the will.   

At common law, if a will is duly executed in accordance with the formal statutory requirements after being read by a testator who appears to understand the will, it is presumed that the testator possessed the requisite capacity and knew and approved the contents of the will.  This presumption may be rebutted where “suspicious circumstances” exist (see below).

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 Leung v Chang, 2013 BCSC 976 for a framework for the burden of proof in litigation regarding contested wills.  

d) The will-maker had knowledge and appreciation about what they were doing.

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 Ali v Walter Estate, 2018 BCSC 1032, Geffen v Goodman Estate, [1991] 2 SCR 353, 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.

Suspicious circumstances may arise where a person who prepares a will also takes a benefit under it, though this is not exhaustive of all circumstances that raise a suspicion. The suspicion is that the will-maker did not know or approve of the contents of the will, and this suspicion must be removed before probate will be granted (see ''Riach v Ferris'', [1934] SCR 725; see also more recent applications in ''Clark v Nash'', (1989) 61 DLR (4th) 409 (BCCA) and ''Johnson v Pelkey'', (1997) 36 BCLR (3d) 40 (SC)).  

Suspicious circumstances surrounding the making of a will is not a stand-alone ground to challenge the validity of a will; however, if a challenger of a will can demonstrate that suspicious circumstances existed when the will was drafted, this may shift the burden to the propounders of the will to prove that the testator had knowledge and approved of the contents of the will when it was made. In ''Vout v Hay'', [1995] 2 SCR 876 at para 25 [''Vout''], the Court held that suspicious circumstance may be raised by:  

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

An Executor is appointed by the will-maker in the will to handle all aspects of the estate after the will-maker’s death. Any person, trust company or financial institution may be an Executor depending on the size of the estate. Although not recommended, a minor may be appointed; however, if they have not reached the age of majority on the will-maker’s death, probate may be delayed.

 

The will-maker should appoint a person that is willing to act, familiar with the estate, young enough to outlive them, and preferably living in BC. An alternative Executor should also be appointed in case the first Executor is unavailable. The Executor, if they accept the position, must carry out the duties of Executor. The Executor may renounce, under section 104 of ''WESA'', if they have not already intermeddled with the estate. In this scenario, the administration of the estate passes as if they have never been appointed Executor.

An Administrator is appointed by the court to administer the estate of a person who dies intestate (without a valid will). Section 130 of ''WESA'' provides the order of priority among applicants for the administration of an intestate estate. An Administrator cannot act until the court issues a Grant of Administration. A “Grant of Administration with Will Annexed” may be granted where there is a will, but the Executor named in the will cannot or will not act (e.g. due to refusal to act, incapacity, or death of the Executor). The order of priority for administration with will annexed is provided in section 131 of ''WESA''. The Administrator’s legal capacity to act starts from the date of the issuance of the Grant of Administration.

A personal representative is a fiduciary at law and must act to the benefit of the estate and the beneficiaries. They cannot purchase from the estate unless they are given specific power to purchase in a will. They are accountable to the estate for any profit made while acting as Executor or Administrator.  If the personal representative makes mistakes and causes loss to the estate, unless the court finds that they acted honestly and reasonably, that person could be held personally liable and could be required to replace the loss.

A personal representative may be entitled to remuneration under a remuneration contract or pursuant to an express authority under the will. Otherwise, they are entitled to fair and reasonable remuneration, not to exceed 5 percent of the gross aggregate value of the estate under section 88 of the ''Trustee Act'', RSBC 1996, c 464, and an annual care and management fee not exceeding 0.4 percent of the average market value of the assets. A personal representative may be a beneficiary under the will, though it is a rebuttable presumption that any benefit other than a residuary bequest under the will is in lieu of compensation. See ''Canada Permanent Trust Co v Guinn'', (1981) 32 BCLR 288 (SC).  

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 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 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, chequing 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.  

* NOTE: '''The clauses given below are merely examples. You should ensure that the clauses you use are appropriate and that the will is internally consistent.''' For example, if specific bequests are given to various persons, another clause in the will should not dispose of the entire estate, but may dispose of the residue. Consult a qualified lawyer, the CLEBC ''Wills and Personal Planning Precedents'' resource or any other books on will precedents for additional assistance with the structure of various clauses.

A will contains instructions about what should happen after the will-maker’s death. As a result, keep in mind the importance of precision and consistency when drafting a will. Generally, there are several paragraphs common to all wills. The CLEBC’s ''Wills and Personal Planning Precedents—An Annotated Guide'' is especially useful.

In addition, the top of each page of the will should identify the page by number and indicate “the Last Will and Testament of [will-maker’s name]” and should be initialled by the will-maker and witnesses.

'''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 his or her place of residence and may state their occupation:

'''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.

This revocation clause may need to be modified in some situations. For example, a will-maker may have a will in another jurisdiction disposing of assets in that jurisdiction. One should be careful to not unintentionally revoke wills that deal solely with assets in another jurisdiction. Further, a will-maker may elect to create dual wills for the purpose of separating assets that require probate (e.g. real property and most bank accounts) and those that do not require probate (e.g. shares in private companies). Dual wills can help save probate fees and were given effect under section 122(1)(b) of ''WESA''. See s 7.5 of the 2019 edition of the CLE ''Wills and Personal Planning Precedents''. A will-maker who wishes to create dual-wills should seek assistance from a lawyer.