Making and Executing a Will (16:III): Difference between revisions
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Making and Executing a Will (16:III) (view source)
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A fundamental rule of drafting is to ascertain the '''will-maker’s intent''' regarding how the estate will be divided. The will-maker should consider present desires as well as future possibilities. For example: | A fundamental rule of drafting is to ascertain the '''will-maker’s intent''' regarding how the estate will be divided. The will-maker should consider present desires as well as future possibilities. For example: | ||
* A beneficiary may predecease the will-maker and the will-maker may want the deceased’s share to go to someone else. | * 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. Please note that a qualified lawyer should be consulted if a wills variation claim may occur. See [[Section VII. Wills Variation Claims]], to determine when this issue might arise. | * Potential will variation claims must be anticipated. Please note that a qualified lawyer should be consulted if a wills variation claim may occur. See [[Wills Variation Claims (16:VII)|Section VII. Wills Variation Claims]], to determine when this issue might arise. | ||
The will-maker should '''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 ensure that those who read it will understand what is being conveyed. | |||
The will-maker should '''not use words and phrases that are open to more than one interpretation'''. In particular, it is important to be clear in describing property and time periods. Certain terms used to describe property or relationships have precise legal meanings, so they should not be used casually. Property and beneficiaries should be carefully described. 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. | 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 [https://www.canlii.org/en/bc/bcsc/doc/2012/2012bcsc1166/2012bcsc1166.html?autocompleteStr=Wilson%20v%20Lougheed%2C%202012%20BCSC%201166&autocompletePos=1 ''Wilson v Lougheed''], 2012 BCSC 1166. | ||
:'''NOTE: The sample clauses throughout this document 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 | :'''NOTE: The sample clauses throughout this document 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 === | ||
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. | A will contains instructions about what should happen after the will-maker’s death. As a result, the will-maker should 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 | 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 initialed by the will-maker and witnesses. | ||
=== 3. Part One === | === 3. Part One === | ||