Wills & Estate A Primer Chidinma B. Thompson, Ph.D Why Do We - PowerPoint PPT Presentation

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.