Wills & Estate A Primer Chidinma B. Thompson, Ph.D
Why Do We Need Wills & Estate Planning? People who die without a valid will are said to be intestate. Legislation create a statutory or default will. The presumption is that intestates wish their family to inherit. PROBLEM: the concept of family has evolved and now incudes AIPs (Adult Interdependent Partners or Common law Partners - Adult Interdependent Relationships Act). A child includes all natural and adopted children whether born inside or outside of marriage. Don t let people with different worldviews decide for you how to arrange your affairs!
Terminology Wills and Succession Act - February 1, 2012. Gifts in wills are called dispositions. Maker of a will is called a testator. Receiver of a gift in a will is called a beneficiary. Person who carries out instructions in a will is called executor or personal representative. Estate any kind of property.
Terminology children, descendants, or issue of any individual include a child in the womb at the time of the testator s death and is later born alive. Property excluded from an Estate - not distributed by will or under intestacy provisions: - Property for which an owner may designate a beneficiary (e.g. RRSP, Life Insurance, etc.) and - Joint tenancy assets (due to right of survivorship). NOTE: Personal Directives & Living Wills: for decision-making when mentally incapable.
Forms & Requirements of Wills There are three forms of wills: Formal wills witnessing rules apply. Holographic wills - wholly in the testator s handwriting. Military wills must be member of the Canadian forces. Who may make a will? A testator must be: over 18; or under 18 if he/she has a spouse or AIP, a member of the Canadian forces or by Court Order.
Forms & Requirements of Wills Must have testamentary capacity. Agent under a Personal Directive or Attorney under an Enduring Power of Attorney does not have authority to give instructions for a will. Instructions for a will must be given independent of a third party, freely and voluntarily by the testator who has testamentary capacity for such instructions.
Forms & Requirements of Wills Formalities of a will - Must be in writing - a will which is tape-recorded or video recorded is not valid. Must be signed by the testator or some other person in the testator s presence and by his direction. initials or a mark or assumed or previous name suffices so long as he/she intends to sign the will. At the foot of the last page. Any disposition after signature is invalid.
Forms & Requirements of Wills Formal wills signature witnessing rules in the presence of two witnesses; and Witnesses must also sign in the presence of all three of them. Who May NOT be a witness? Beneficiaries; Persons who sign a will on behalf of the testator; and Interpreters who translate the will. Any dispositions in the will to these people are VOID. (Undue Influence)
Forms & Requirements of Wills Court may upon application validate such a gift to a witness within six months after the grant of probate or administration. An executor may be a witness to a will. Witnesses do not have to know that the document they are witnessing is a will (but important they do to be able to swear to testamentary capacity of the testator). A will is NO LONGER revoked by the marriage or AIP relationship of the testator.
Forms & Requirements of Wills However, upon divorce or cessation of AIP: - gift to the former spouse or AIP in the will is revoked; - general or specific power of appointment to the former spouse or AIP is revoked; and - appointment of the former spouse or AIP as executor, trustee, or guardian of a child is revoked. Essentially, it is treated as if the former spouse or AIP had predeceased the testator.
Alteration, Revocation, Revival & Rectification of Wills Any alteration on a will is presumed to have been made after the will was signed. A formal will can only be altered following the witness formalities. A holograph will can only be altered holographically. Rectification of a will can only be by Court Order by adding or deleting characters, words or provisions for: An accidental slip, omission, misdescription or misunderstanding.
Alteration, Revocation, & Revival of Wills A will can only be revoked by the testator: - Making another will; - Making a writing that declares an intention to revoke an earlier will; - Burning, tearing, or destroying with the intention of revoking the will; or - Having another individual burn, tear, or destroy the will, in the testator s presence, at the direction of the testator, with the intention of revoking the will. The revocation of a will does not revive an earlier will.
Alteration, Revocation, & Revival of Wills A will that has been revoked in any manner may only be revived by: - making a new will (whether by re-execution or otherwise) following the required formalities, and - in a manner which shows an intention to give effect to the will that was revoked. A will that is revived by re-execution is deemed to be made at the time of its re-execution.
Alteration, Revocation, & Revival of Wills The last will prevails. However, copies of previous wills should be retained as the last will may be considered invalid for any reason. The previous will may be the valid will. Grounds for challenging a will BEWARE OF A WILL KIT! - lack of requisite formalities; - suspicious circumstances; - lack of testamentary capacity; - undue influence.
Challenging a Will Example of Litigation challenging validity of a will: Pender v. O Connor, 2014 ABQB 564 Appearances: Sarah N. Bowman, Bolton Bishop Lawyers - for the Applicant Chidinma B. Thompson, Borden Ladner Gervais LLP for - the Respondents - suspicious circumstances; - lack of testamentary capacity; and - undue influence.