Making A Will

2016-06-04

The drafting of a Will or a revision of a dated version involves asking yourself a number of important questions. It may seem a simple process but without legal advice, many considerations can be overlooked, with later consequences.

The first item is-Who will be your Personal Representative or more commonly called Executor/Trustee? This person must handle all your legal and financial affairs, and wind up your Estate after your death. Often, it can be your spouse, but many these days are divorced, widowed or without close partners. The person chosen should agree to fulfill this important function. See last month’s Article on Executor duties-on the website Gordon Ball-Nanaimo Divorce. Obviously the person chosen should be someone close and trusted as well as preferably knows as much as possible about your situation. Living nearby is a benefit for less cost and inconvenience, as well as avoiding bonding issues for those residing out of province.

An Alternate Executor should be named, since your first named Executor may be deceased or otherwise be unable to perform the duties needed and your Will has not been updated to name your new first choice.

An important next step, is to organize your finances so that the Executor does not find a mess to discipher. Try to simplify your investments and holdings as you get older and approach your last days. (Most of us have little idea of how long away or how soon that may be.)

Naming your Beneficiaries is usually a simple task of leaving all your assets to a surviving spouse with the caveat, that if they are not alive at your death, then all to the children. You may overlook the fact that is some cases, a child may predecease you. Whom then gets that child’s would be share? Is it their spouse or often your grandchildren from that child? If the grandchildren are beneficiaries of an inheritance you leave behind and are minors, they could receive a large sum. What age should they receive it once they are adults? In B.C. that age is 19 years and only 18 in Alberta.

HOWEVER, I have many instances when that age is too young to deal with a large amount. It can be wasted by those immature, or can rob them of their ambition to get an education and make something of their life. Often provided are terms to prevent this by providing the amounts in stages-say age 19-20% , age 23-20% , age 27- balance. This assures a much better use and result of the amounts you leave to assist your family.

Unfortunately, there are families where one child from a perfectly normal family, for whatever reason, moves away, disowns his/her parents and siblings and does not want anything to do with any of them for perhaps 20 years or longer. Must you still include that child equally in a share of your Estate? The answer is not simple, and depends on the situation. Many different possibilities arise. For personal reasons, such as someone heavy into drugs, leaving them funds might make things worse in their life. Some cultures view a daughter as the full responsibility of her husband and do not wish to leave anything to a daughter.

The B.C. Wills, Estates and Succession Act (WESA) requires that you must make proper and adequate provision for your spouse and children for their adequate support and maintenance. If you fail to do so, The Wills Variation Act (B.C.) allows them to apply to the Court to have a Judge amend your Will. The cases dictate that if there is no good reason for fully leaving out a child or spouse, then they should get some share. You should have a Lawyer help you to carry out your specific wishes and intentions, and explain fully why you would reduce or eliminate a spouse or child from the benefits of your Estate.

Do not rely on verbal promises you may have made to be carried out. For specific items that are not set out clearly in your Will, the Will should refer to an attached note in your own handwriting, detailing certain items and to whom should receive them.

The above refers to some of the matters that make up the drafting of a proper Will. Of course, a Will is an important document to have completed.

Get proper legal advice to be sure your wishes are followed.

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