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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 21:39, 6 August 2021
, 21:39, 6 August 2021→C. Drafting a Will
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=== 1. Intention and Precision === | === 1. Intention and Precision === | ||
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 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. | 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. | ||
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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. | ||
* NOTE: | '''* 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. | ||
=== 2. Actual Drafting === | === 2. Actual Drafting === | ||