WILLS PROCEDURE INDEX

Transcription

1 Guide to Wills and Estates Section II A 1 WILLS PROCEDURE INDEX...Page Definition... 2 Validity Requirements Testamentary Capacity... 3 Age of majority... 3 Will must be in writing... 4 Will must be signed... 4 Testator s signature must be witnessed... 5 Preparation of Wills B Format... 6 Execution... 7 Safeguarding the Will... 8 Wills Notices... 8 Reporting... 9 Codicil... 9 Revocation of Will... 9

2 2 WILLS Procedure Guide to Wills and Estates If unfamiliar with the subject of Wills, before reading this Section, proceed to the Overview in Section I which summarizes the relevant Statutes, the general flow of the file and generally explains what to expect when dealing with either a Will or an estate file. DEFINITION A Will is a document in which a person expresses his or her wishes on the disposition of the property after death. A person making a Will is called a Testator. The Will is sometimes referred to as the Last Will and Testament. The words Will, Testament and Last Will and Testament are synonymous. According to Black s Legal Dictionary:... strictly speaking, the term testament denotes only a will of personal property; a will of land not being called a testament.... The word testament is now seldom used, except in the heading of a formal Will, which usually begins: This is the last will and testament, of me... etc.. A Will comes into effect only upon death of the Testator and: appoints an Executor to take charge of the Deceased s affairs; provides for the payment of the Deceased s debts; provides for the Testator s property to be divided according to Deceased s wishes; provides for the care of the Deceased s family and/or business. It is essential that the Will reflects the Testator s intentions as accurately and clearly as possible. Items which are not clearly set out (and are therefore left to interpretation) can result in complications, delays or even litigation when the time comes to rely on the Will. Accordingly, it is the responsibility of the lawyer who is drafting the Will to ensure that the Testator s intentions are understood and that these intentions are reflected in the final Will. To ensure that the Testator s intentions are properly expressed, a Will should be drawn up by a lawyer after close consultation with the Testator. When meeting with the lawyer, the Testator should inform the lawyer of all matters that relate to the Will, the Testator s family circumstances and the manner in which the Testator wishes assets to be disposed. 1/12 EVIN ROSS PUBLICATIONS Ltd. All Rights Reserved

3 Guide to Wills and Estates Section II A 3 VALIDITY REQUIREMENTS Certain legal requirements must be fulfilled for a Will to be valid. The primary requirements relate to the ability of a person to make a Will: the person s competency, or testamentary capacity, and legal age. The other requirements relate to the document itself and are governed by the Wills Act and deal with the form of the Will. Although it is not the legal secretary s role to determine or decide what constitutes a valid Will, it is obviously important to know the requirements in order to be of best assistance to the lawyer. Testamentary Capacity At the time of making a Will, a person must be of sound and disposing mind. The Testator must also understand that, at his or her death, the Will shall be a legally binding document and that the assets will be distributed as set out in it. In other words, the Testator must have the testamentary capacity, or the mental ability recognized by law to make a valid Will. A Will may be declared invalid if it can be shown that there was a lack of testamentary capacity. The Testator does not have testamentary capacity (or is non compos mentis) if, at the time of making the Will, the Testator: suffered from insane delusions affecting his or her powers of reason or judgment; or had reduced mental ability due to senility or advanced old age (such that the Testator did not understand the nature of the Will); or suffered from a physical or emotional illness which affected mental capacity. The Testator must prepare the Will voluntarily, and be free from undue influence when making the Will as it may later be challenged on the grounds that the Testator was pressured into giving the estate to one particular individual at the expense of others. For this reason, most lawyers insist that, while giving instructions, the Testator be alone with the lawyer. Age of majority Section 7 of the Wills Act provides that: 7. (1) A will made by a person who is under the age of 19 years is not valid unless at the time of making the will the person (a) is or has been married; or (b) is a person described in section 5... Section 5 of the Wills Act describes the exceptions: 5. (1) A member of the Canadian Forces while placed on active service under the National Defence Act, or member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service, or a mariner or seaman at sea or in the course of a voyage may, regardless of his or her age, dispose of his or her real and personal estate by will in writing, signed by the testator at its end or by some other person in the presence of and by the direction of the testator. This means that a Will made by a person under the age of 19 years (or under the age of majority ) is not valid except when made in the above circumstances.

4 4 WILLS Procedure Guide to Wills and Estates Will must be in writing Section 3 of the Wills Act states that: 3. A Will is valid only if it is in writing. This means that a Will must be handwritten, typed or printed. Audio or video tapes are not acceptable. There are no standard words or phrases necessary in a Will, provided that the intentions of the Testator are clear and the Will is sufficient to dispose of the assets belonging to the Testator at the time of death. A Will which is entirely hand-written by the Testator (but is not witnessed) is called a holograph Will. A holograph Will is sometimes recognized in some provinces of Canada, but in British Columbia, a holograph Will is not valid unless the Testator: is a member of the Canadian Forces on active service under the National Defence Act, or a member of the naval, land or air force of any member of the British Commonwealth of Nations or any ally of Canada while on active service; or is a mariner or seaman at sea or in the course of a voyage. Will must be signed Section 4 of the Wills Act states that: 4. Subject to Section 5, a will is not valid unless (a) (b) (c) at its end it is signed by the testator or signed in the testator s name by some other person in the testator s presence and by the testator s direction, the testator makes or acknowledges the signature in the presence of 2 or more attesting witnesses present at the same time, and 2 or more of the attesting witnesses subscribe the will in the presence of the testator. Usually, a Will is signed at its end although Sub-sections 6 (1) and (2) of the Wills Act provide that there are other possible places for the Will to be signed and be valid. The space provided for the Testator s signature is called the attestation clause. There are instances where a person may not be able to read or sign in the normal way. For example, the Testator may be blind, ill, or be ignorant of the English language. Alternatively, the Testator may be able to read the Will, but be unable to sign it because of a physical handicap. In these instances, special arrangements have to be made. In the case of an inability to read the Will, it would have to be read or translated to the Testator. In the case of an inability to sign, someone else would have to sign the Will after it was read to the Testator. Whatever the case, the standard attestation clause would have to be altered to reflect the unique circumstances of the Will s execution (see Section II D Attestation or Execution clause). Although not required by the Wills Act, a Will is always dated in order to ensure that the one being prepared is the last Will chronologically. 1/12 EVIN ROSS PUBLICATIONS Ltd. All Rights Reserved

5 Guide to Wills and Estates Section II A 5 Testator s signature must be witnessed The signature of the Testator must be witnessed by at least two witnesses who are present with the Testator. Each witness must sign in the other s presence and in the presence of the Testator who must see the witnesses sign (see Section 4 of the Wills Act referred to above). In other words, if there are two witnesses (which is usual), all three people must see each other sign. It is customary that each page of the Will, as well as any changes, deletions or additions made prior to the signature, is initialled by the Testator and the witnesses. The witnesses must be of the age of majority (19 years), and cannot be beneficiaries or spouses of beneficiaries named in the Will. If, by any chance, a beneficiary or a spouse of a beneficiary is a witness to the signature of the Testator, that beneficiary s gift becomes invalid although the Will is valid. The gift, or the share of the estate to which such beneficiary would have been entitled to, would fall into the residue of the estate. Simply put, the beneficiary who is also a witness will get nothing under the Will. It is important to note that the witnesses do not need to read the contents of the Will. They need only witness the Testator s signature and declaration that the Will is the Testator s last Will and Testament. Where the Will is signed and witnessed in a law office, two employees of the law firm will usually act as witnesses.

6 6 WILLS Procedure Guide to Wills and Estates PREPARATION OF WILLS B FORMAT To assist the legal secretary in understanding the format, a sample ready for signature Will is provided in Section II C. Remember that this is only a fictitious sample and each law office usually has its own style which may vary from the one shown. Wills are usually prepared on special Will paper which is letter-sized, 8.5 x 11 (19 cm x 25 cm), with a double red margin line on the left and sometimes, a single one on the right. It is preferable to use letter-sized paper because, when the Will is ultimately probated, a copy is attached to the Grant of Letters Probate, which is letter-sized. It is obviously easier to handle and make copies when all documents are the same size. The Will text is usually double-spaced with triple-spacing between paragraphs. In Section II D, Precedent clauses are provided. These are examples of the paragraphs which constitute building blocks enabling the preparation of an infinite variety of Wills. The clauses provided here are only the basic ones as more elaborately drafted clauses are beyond the scope of this Guide. Usually, lawyers compile their own clauses and develop their own set of precedents. The legal secretary should understand how and when to use the various clauses. The attestation clause appears at the end of the Will, immediately following the last sentence of the last paragraph. It is single-spaced. Ultimately, the Testator and the witnesses will sign here. It is important to note that the attestation clause should never appear on the last page by itself B at least the last two lines of the text must appear on the last page with it so that no pages could be inserted between the last sentence and the attestation clause. In these instances: a diagonal line should be drawn through the blank space on the second to last page; and the two last lines of text and attestation clause should be typed on the last page. Every prepared Will should be accompanied by a protective backing sheet. There are basically two types of backing sheets and the one chosen depends upon the law firm s practice: A standard backing sheet is typed sideways (landscape format) on standard letter-sized bond paper like the format used for Court documents. One staple is placed in the upper left-hand corner and a blue corner may be used when stapling the Will together to protect it from tearing. A special backing sheet is usually made of thick, light-blue paper and is about 1/2 longer than the standard letter-sized paper. The top of the backing sheet is folded over the top of the Will and then staples (usually three) are placed along the top margin. When using this type of backing sheet, there must be about a 2 inch margin at the top of the first page of the typed Will and about 1 at the top of all other pages. The backing sheet not only protects the Will, it also displays information which allows for easy identification of the Will when it is folded letter style (see Section II C Backing sheet). Once the Will has been prepared, it is checked by the supervising lawyer. In some cases, it will be necessary to forward a draft to the client for approval (see Section II B Letter forwarding Will to client for approval). This may or may not result in changes to the Will. 1/12 EVIN ROSS PUBLICATIONS Ltd. All Rights Reserved

7 Guide to Wills and Estates Section II A 7 EXECUTION Execution is the signature of a Will at its end by the Testator and two witnesses of legal age. It the final step in making a Will. An appointment is now set up for the client to come in and sign the final copy. The lawyer may phone the client directly or may instruct the secretary to do so. Where the client is hard to reach by phone, an appointment may be arranged by letter (see Section II B Letter requesting an appointment). Usually, two copies of the Will should be made before execution (one copy for the office file and one for the client). Only the original Will should be signed. The Will is usually signed by the client in the law office. Alternatively, a lawyer and another person from the law firm will attend at the client s residence or hospital in order to arrange for the client to sign the Will and have the signature witnessed. At the actual appointment, to ensure that the Will is properly signed: The Testator must read over the Will before signing or, if the Testator is blind, the Will should be read to the Testator prior to signing. It is not necessary to have the witnesses read the Will as their purpose is simply to witness the signing of the Will by the Testator. The date must be completed. If the date is inserted after typing, such date must be initialled by the Testator and the witnesses. The Will must be signed at its end (in the attestation clause) by the Testator in the presence of two witnesses. Each witness must sign the Will in the presence of the other and the Testator. Not only must all three people be present, but they must each see both the others sign the Will. If this is not done, the Will is invalid and shall not be enforceable. It is not advisable to allow a relative of the Testator to witness the Will, even if the relative is not mentioned in the Will. If the lawyer is named as an Executor in the Will, he or she should not act as a witness to the Testator s signature. All corrections, deletions and additions made in the Will must be initialled by all three parties (i.e. the Testator and the two witnesses). Each page of the Will, except the last page (which is signed by the Testator and the witnesses) must be initialled by the Testator and the witnesses. The Testator and the witnesses must be 19 years of age or older. The witnesses and their spouses cannot benefit under the Will. So, if a person is to be a beneficiary under the Will, that person cannot witness the Will. The Courts prevent any testamentary gift to a witness. N.B. There are different attestation clauses in special cases (see Section II D Attestation or execution clause). For instance, when the Testator cannot read or write and signs with a mark (after having had the Will read out loud), or when a Testator is blind or does not speak or understand the English language. In any of these instances the supervising lawyer should be consulted for guidance. In some instances, a Will is sent to the client for signature. Generally, this practice is strongly discouraged because a lawyer cannot accept responsibility for the validity of a Will signed without that lawyer s personal attendance upon signature. However, instances will inevitably arise where the client cannot attend at the law firm, and the Will is sent out for execution (see Section II B Letter forwarding Will to client for execution).

8 8 WILLS Procedure Guide to Wills and Estates SAFEGUARDING THE WILL Once the Will has been executed, it should be placed in an envelope bearing the Testator s full name. It is preferable to use a full-sized envelope (9 2 x 12 ) as the Will can be placed in it, unfolded (documents which are not creased are easier to photocopy). However, some lawyers prefer that the Will be letter-style folded and placed in a standard envelope. Each law office must have a consistently followed, formal procedure for safeguarding executed Wills. Some offices store them in an on-premises fire-proof vault. Others store Wills offpremises in a bank safety deposit box. However, it is important to appreciate that whatever is done with the Will, it is stored only with the client s consent and the client may wish to keep the Will at home, in a safety deposit box or elsewhere. In fact, some law offices do not retain possession of any executed Wills. In such case, a copy only is held in the office file and the original executed Will provided to the client for safeguarding. Regardless of where executed Wills are stored, a proper catalogue must be maintained which contains the details on every Will prepared by the law firm (i.e. Testator s name, execution date and Will s location). Innumerable catalogue systems methods are available. For example, an 3 x 5 index card may be prepared at the execution of each Will, with the card being filed alphabetically in a box used solely as a Wills catalogue. Another simple (and effective) system is to make an extra copy of the Wills Notice (see below) and alphabetically file this copy in a binder. In addition, numerous computer systems are available. WILLS NOTICES In order to enable the Executor to locate the original Will after the Testator s death, it is recommended (although not mandatory) that a Wills Notice be filed with the Wills Registry (Division of Vital Statistics) when a Will is executed. This Notice identifies the Testator, and advises the Registry of the Will s date and location. The Notice may either be filed electronically with the Department of Vital Statistics or be filed by mailing a paper copy to the Department. To file the Notice electronically, you can use your account with BCOnLine or a credit card ( If the Notice is filed in paper format, it can be accepted only in the form prescribed by the regulation (i.e. Form W.1). It can either be obtained free of charge from the Division of Vital Statistics, or be printed from their website (see Section IV Addresses), or purchased from a stationery supplier. For instructions on how to complete the Notice, see Section II C Wills Notice. A separate Wills Notice must be submitted for every event, such as: execution of a new Will; or revocation of a Will; or execution of a Codicil; or relocation of a Will or Codicil (see next page). In due course, the Registry will mail confirmation of the Wills Notice s receipt. It takes about three to four weeks for the law firm to receive the confirmation. 1/12 EVIN ROSS PUBLICATIONS Ltd. All Rights Reserved

9 Guide to Wills and Estates Section II A 9 REPORTING When all of the foregoing matters have been attended to, it is time to report to the client and forward the statement of account for legal services rendered with respect to the Will (see Section II B Letter reporting to client on execution of Will). A copy of the Will should also be attached. Note that no sample account is given as each law firm has its own specific style and wording to follow. Once the letter is mailed and the account paid, the file can be closed (following the law firm s procedure), then sent to storage. CODICIL Sometimes months, or possibly years, after a Will has been executed, the Testator may wish to make changes to it. For example, the Testator may have acquired a piece of jewellery (after the Will was executed) and wish to bequest the jewellery to a particular person. Or the Testator may wish to change an Executor or Guardian. Instead of drawing up an entirely new Will, the Testator may execute a Codicil. It is an addendum to, or amendment of, an original Will which explains, alters or modifies the provisions of the original Will, or adds to, or subtracts from, the Will by revoking certain clauses and substituting new ones in their place. There may be several Codicils to a Will. However, in the interest of clarity, a new Will (as opposed to a Codicil) should be prepared if: numerous changes are required; the changes are substantial; or there have already been several Codicils. The Codicil is prepared, dated and executed in the same manner as for a Will. In addition, a Wills Notice should also be prepared and filed. For practical reasons, a Codicil should be stored in the same envelope in which the Will is stored. REVOCATION OF WILL In most cases, a Will is revoked when a new one is made and a revocation clause is included in the new Will. However, a Will is also revoked when: the testator marries (Section 15 of the Wills Act) unless a declaration stating that the Will is made in contemplation of the marriage is inserted in the Will; the Testator executes a form of revocation declaring an intention to revoke the Will; the Testator, or some person in the Testator s presence and by his or her direction, destroys the Will (e.g. burns it, tears it up or obliterates all the pages) with the intention of revoking Will. Please note that Section 16(2) of the Wills Act provides that in case of a judicial separation or termination of marriage (unless a contrary intention appears in the Will) a gift, appointment of

10 10 WILLS Procedure Guide to Wills and Estates spouse or special power of appointment conferred on the spouse, are revoked. However, the Will is valid as if the spouse had predeceased the Testator (see Section II D Contemplation of Marriage, Separation or Divorce). One of the most common reasons why a Testator would formally revoke a Will and not execute a new one, is that the Testator believes that his or her estate would be distributed fairly pursuant to the Estate Administration Act. Therefore, if there is no Will, there is no possibility of an application under the Wills Variation Act. In that case, a Revocation of Will should be executed (see Wills Documents Revocation). The Revocation is prepared, dated and executed in the same manner as for a Will. In addition, a Wills Notice should also be prepared and filed. For practical reasons, the original Will should be either destroyed in its entirety or the word Revoked written across each page. If the Will has not been destroyed, the Revocation of the Will should be attached to the Will that has been revoked and stored in the same envelope. 1/12 EVIN ROSS PUBLICATIONS Ltd. All Rights Reserved