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

:'''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.  

As a general rule, anyone named in a will can inherit under that will. However, minors cannot sign a valid receipt for their share in an estate. In practical terms, this means that minors must wait until they reach the age of majority to inherit under a will. The parent, guardian, or other trustee for the benefit of the child would hold title to any property until the child reaches age 19. When property is held by a trustee in trust for a child under the age of 19, the trustee is deemed to have the power to encroach and may, at their discretion, apply all or part of the income to which the child may be entitled towards the maintenance and/or education of the child (''Trustee Act'', RSBC 1996, c 464, s 24).

::(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;

::(c) give that person what remains of that person’s part of my estate when that person reaches 19, but if that person dies before reaching 19, give what remains of that person’s part of my estate to that person’s estate; and  

:(See 2020 CLEBC ''Wills and Personal Planning Precedents'', 20.4.)  

Section 153 of ''WESA'' provides that where there is no trustee in the estate, money bequeathed to a minor is paid to the Public Guardian in trust for that minor. The ''Infants Act'', RSBC 1996, c 223 (s 14(1)) states that, subject to the terms of a trust set up in a will, the Public Guardian may authorize payment of all or part of the trust for the maintenance, education or benefit of the infant.  

If a will-maker wants a clause to limit the Trustee’s investment powers, a wills precedent book must be consulted. If any of the persons the will-maker wishes to benefit are stepchildren, the will should clearly identify that person by name rather than merely by relationship (i.e. “children”). '''Stepchildren are not considered children under ''WESA'' and should be referred to by name'''. Adopted children, however, are for all purposes the children of the adopting parents, and not the legal children of the natural birth parents, per section 3 of ''WESA''.  

This section of a will outlines the Trustee’s general power and discretion to fix the value of the estate.

:'''NOTE''': While the Trustee has a general discretion to fix the value of the estate, there must be some factual basis to support this valuation. The Trustee has a fiduciary responsibility to act to the benefit of the estate and the beneficiaries.  

:'''SAMPLE:''' “When my Trustee divides or distributes my estate, my Trustee may decide which assets of my estate to allocate to any share or interest in my estate (and not necessarily equally among those shares or interests) and the value of each of those assets. Whatever value my Trustee places on those assets will be final and binding on everyone interested in my estate.” (2020 CLEBC ''Wills and Personal Planning Precedents'', 20.8)

See Section [[Wills_Variation_Claims_(16:VI)|VI: 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.” (2020 CLEBC ''Wills and Personal Planning Precedents'', 21.3)

'''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 witnesses who do not have an interest in the estate (i.e. is not a beneficiary or executor) and are not the spouses of any individual who has an interest in the estate; there must be room for the two witnesses’ signatures (see Section '''III.D: Executing the Will''' and Section '''III.E: Attesting the Will''').

:'''NOTE: Execute only the original will'''. Copies should not be signed by the will-maker and witnesses but can be photocopied or have facsimile signatures and dates inserted. Students should write or stamp the word “copy” on all photocopies.

 

:'''NOTE: Ability to electronically witness a will.''' Ministerial Order No. M161 was issued in response to the COVID-19 pandemic, and the order allows for temporary electronic witnessing of wills starting on March 18, 2020. Since then, ''Bill 21'' has been tabled, which will give full validity to electronically witnessed wills going forward. ''Bill 21'' is not yet fully in effect, so readers are advised to seek out the most recent updates. See Section '''III.E.2: Signatures of Witnesses''' for more information.

Inclusion of a signed attestation clause will raise a presumption that the will is properly executed (''[https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc272/2019bcsc272.html?autocompleteStr=Singh%20Estate%20(Re)%2C%202019%20BCSC%20272%20&autocompletePos=1 Singh Estate (Re)]'', 2019 BCSC 272 paras 58-60). An attestation clause is a clause at the end of the will where the will-maker signs their name testifying to the fact that they are 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.  

It will be possible to satisfy the writing requirement if the will is in electronic form. Section 37(4) says that an electronic will is a will for the purposes of this act. This means that wills can be signed and stored electronically. The following are two scenarios of how an electronic will may be executed and witnessed:

The will-maker and the two witnesses are physically in the same room. They share an electronic drive that displays a PDF of the will. The will-maker signs the PDF will on the electronic device in the physical presence of the two witnesses, and then each of the witnesses sign the PDF in the physical presence of the will-maker.

Alternatively the will-maker and the two witnesses are all in different physical locations but are all in the same video conferencing “room”. For example, a Zoom room or a MS Teams room. The will-maker uses the screen sharing function on the video conferencing platform to share a live display of the will on their screen with the two witnesses. The will-maker then signs the will by electronic signature. The first witnesses then does the same, and the second witness then does the same.

After the electronic will is signed, it is recommended that the will-maker immediately save a complete signed electronic copy of the will as a PDF, lock the PDF from further editing and secure it in a secure location.

If a client seeks to execute or have their electronic will witnessed, please consult with the supervising lawyer prior to taking instructions or agreeing to help the client.