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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 23:55, 9 August 2021
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{{REVIEWED LSLAP | date= August | {{REVIEWED LSLAP | date= August 9, 2021}} | ||
{{LSLAP Manual TOC|expanded = wills}} | {{LSLAP Manual TOC|expanded = wills}} | ||
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Those appointing a guardian should be aware that the court could review such a decision. As well, members of the family can apply to have a decision in the will set aside. However, it must be strictly proven that the guardian appointed by the will-maker is unsuitable for the position. | Those appointing a guardian should be aware that the court could review such a decision. As well, members of the family can apply to have a decision in the will set aside. However, it must be strictly proven that the guardian appointed by the will-maker is unsuitable for the position. | ||
'''SAMPLE:''' “I appoint my [relationship] [full guardian name] (“[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 [preferred pronoun] will, or otherwise, to be the guardian of my minor children.” (2020 CLEBC ''Wills and Personal Planning Precedents'', 4.9) | |||
For more information, see '''Chapter 3: Family Law'''. | For more information, see '''Chapter 3: Family Law'''. | ||
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This clause gives the Executor/Trustee the power to deal with the estate as they see fit, in keeping with the will-maker’s wishes under the will and the Trustee’s fiduciary duties. | This clause gives the Executor/Trustee the power to deal with the estate as they see fit, in keeping with the will-maker’s wishes under the will and the Trustee’s fiduciary duties. | ||
'''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)... [refer to the applicable “convert, keep or invest” clause] of this Will” (2020 CLEBC ''Wills and Personal Planning Precedents'', 7.3) | |||
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 2020 CLEBC ''Wills and Personal Planning Precedents'', 48.2, to better understand how this would look. | 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 2020 CLEBC ''Wills and Personal Planning Precedents'', 48.2, to better understand how this would look. | ||
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This clause is usually inserted even though the Executor/Trustee is legally required to pay debts outstanding at death, reasonable funeral expenses, taxes, and legal fees out of the estate. | This clause is usually inserted even though the Executor/Trustee is legally required to pay debts outstanding at death, reasonable funeral expenses, taxes, and legal fees out of the estate. | ||
'''SAMPLE:''' “(a) to pay out of my estate: | |||
# my debts, including income taxes payable up to and including the date of my death [and any financial charges with respect to any property which, pursuant to this will, is transferred free and clear to a beneficiary for beneficiaries]; | # my debts, including income taxes payable up to and including the date of my death [and any financial charges with respect to any property which, pursuant to this will, is transferred free and clear to a beneficiary for beneficiaries]; | ||
# my funeral and other expenses related to this Will and my death; and | # my funeral and other expenses related to this Will and my death; and | ||
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The will-maker may wish to make a specific bequest of a personal article. The appropriate item must be listed. | The will-maker may wish to make a specific bequest of a personal article. The appropriate item must be listed. | ||
'''SAMPLE:''' “(a) to deliver my [article 1] to my [relationship] [article 1 recipient full name], if [they] are alive on the date that is 5 days after the date of my death, and if [they] are not alive on that date, add [article 1] to the residue of my estate. | |||
“(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].” (2020 CLEBC ''Wills and Personal Planning Precedents'', 11.8) | |||
==== d) Cash Legacies ==== | ==== d) Cash Legacies ==== | ||
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The will-maker may wish to make a specific bequest of cash legacies. | The will-maker may wish to make a specific bequest of cash legacies. | ||
'''SAMPLE:''' “to pay: (i) $ [amount] without interest to [name of recipient of cash gift] of [address], if [they] are alive on the date that is 30 days after the date of my death, and if [name of recipient of cash gift] is not alive on that date, that amount will form part of the residue of my estate;” (2020 CLEBC ''Wills and Personal Planning Precedents'', 13) | |||
If the client feels that their 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 2020 CLEBC ''Wills and Personal Planning Precedents'', 13.4. | If the client feels that their 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 2020 CLEBC ''Wills and Personal Planning Precedents'', 13.4. | ||
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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 deceased spouse leaves the residue to the surviving spouse is: | 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 deceased spouse leaves the residue to the surviving spouse is: | ||
'''SAMPLE:''' “(a) to give the residue of my estate to [residue name], if [they] are 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].” (2020 CLEBC ''Wills and Personal Planning Precedents'', 15.4) | “(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].” (2020 CLEBC ''Wills and Personal Planning Precedents'', 15.4) | ||
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If the will-maker’s spouse does not survive the will-maker, often the will-maker will want to leave the estate to their children. A will-maker must decide whether they wish to divide the estate between only those children alive at the will-maker’s death, or if they wish to benefit the issue of any pre-deceased child as well (i.e. grandchildren). | If the will-maker’s spouse does not survive the will-maker, often the will-maker will want to leave the estate to their children. A will-maker must decide whether they wish to divide the estate between only those children alive at the will-maker’s death, or if they wish to benefit the issue of any pre-deceased child as well (i.e. grandchildren). | ||
'''SAMPLE:''' “If [spouse’s name] is not alive on the date that is 30 days after the date of my death, to divide the residue of my estate in 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 if [either/any] child of mine has died before that date and one or more of their children are alive on that date, that deceased child of mine will be considered alive for the purposes of the division and the share creates for that deceased child of mine will be divided equally among those of their children who are alive on that date;” (2020 CLEBC Wills and Personal Planning Precedents, 15.8) | |||
[The will should then go on to detail the terms upon which the shares will be distributed to the beneficiaries: e.g. the age at which the trustee should pay out the shares.] | [The will should then go on to detail the terms upon which the shares will be distributed to the beneficiaries: e.g. the age at which the trustee should pay out the shares.] | ||
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'''The third part of a will deals with the administration of the estate. This section outlines the Trustee’s general powers and responsibilities:''' trusts for minors, payments for minors, and valuation of the estate. The only implied power of an Executor to deal with assets is a power to “call in” and sell the assets which are not specifically gifted in the will. Therefore, a well-drafted will should involve several express powers so that the Executor can efficiently deal with the assets of the estate. | '''The third part of a will deals with the administration of the estate. This section outlines the Trustee’s general powers and responsibilities:''' trusts for minors, payments for minors, and valuation of the estate. The only implied power of an Executor to deal with assets is a power to “call in” and sell the assets which are not specifically gifted in the will. Therefore, a well-drafted will should involve several express powers so that the Executor can efficiently deal with the assets of the estate. | ||
'''NOTE''': There is an important distinction that must be made between the duties and powers of the Executor. On the one hand, duties are non-discretionary. They dictate a course of action that the Executor must take according to the intentions of the will-maker as set out in the will. On the other hand, powers are discretionary. They allow the executor to make decisions within a range of possibilities according to the intentions of the will-maker. | |||
==== b) Gifts to Children ==== | ==== b) Gifts to Children ==== | ||
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* Give the Trustee discretion to invest outside the ''Trustee Act'', only if they are acquainted with business matters. | * Give the Trustee discretion to invest outside the ''Trustee Act'', only if they are acquainted with business matters. | ||
'''SAMPLE:''' “If any person who becomes entitled to any part of my estate is under the age of majority, and I have not specified terms in this Will on which my Trustee is to hold that part, I direct my Trustee to hold that part, and: | |||
::(a) pay or use so much of the income and capital of that person’s part of my estate as my Trustee decides for that person’s benefit until that person reaches 19; | ::(a) pay or use so much of the income and capital of that person’s part of my estate as my Trustee decides for that person’s benefit until that person reaches 19; | ||
::(b) add any income not paid or used in any year to the capital of that person’s part of my estate; | ::(b) add any income not paid or used in any year to the capital of that person’s part of my estate; | ||
