ESTATE FIP505ncc

PLANNING : WILLS Tuesday March 7

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ESTATE PLANNING: INTRODUCTION
TO WILLS
Estate Planning: Introduction To Wills
One of the most vital documents every adult should
have is a written will.
A will is the legal declaration of a person's mind as to
the disposition of his or her property after death. Thus,
a will is a way to transfer your property according to
your wishes after you die.
The individual who writes the will is called the testator
if male, and the testatrix if female.

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 ESTATE PLANNING: INTRODUCTION
TO WILLS
Benefits of a Will
A will gives you the opportunity to make sure certain matters are
handled in accordance with your wishes after your death.
1. Allowing you to choose in advance how you want your property
to be distributed.
2. Appointing a guardian for your minor children or other
individual who requires guardianship.
3. Choosing the executor of your estate.
4. Designating a successor custodian in cases where you are serving
in a custodial capacity for a minor or special-needs adult.
5. Providing for individuals who would otherwise not have been
eligible to receive property you leave behind.
6. A will can also allow you to donate property to charities of your
choice and choose the assets that would be used in the donation.
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JOINT TENANCY – DOES
THE PROPERTY FLOW
THROUGH THE WILL?
Joint with right of survivorship

Joint tenants in common.

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 THE MAKE UP OF A WILL
Identification and Revocation Clause
- Identifies you and your residence. Declares that this is your last will, revoking all prior wills
Appointment of Executor(s)
- Designates the individual or institution you appoint as your executor. May also designate alternative and successor
executors if your original executor cannot act. The clause may provide for the payment of compensation to the
executor for their services.
Payment of Debts
- Directs your executor to pay all debts, such as mortgages, loans and funeral and estate administration expenses.
Payment of Taxes and Fees
- Authorized your executor to pay income tax or probate fees that may be due.
Specific Bequests
- Outlines the distribution of specific personal property
- Furniture, Jewelry, Cars
- May also refer to your RRSPs, RRIFs and pensions
Legacies
- Directs specific cash amounts to be paid
Residual Estates
- Outlines the distribution of your remaining property after all the specific bequests have been made.
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 COMMON CLAUSES AND THEIR
PURPOSE
Trusts – Sets out the terms of any trust created by your will

Power Clauses – Enables your executor to exercise various powers in the management of your estate without the approval
of the court

Life Interest Clause – Used when you want to leave someone the income or the enjoyment of the assets, rather than the
asset itself. Upon the life tenant’s death, the asset would pass on to another beneficiary

Encroachment Clause – Used in a trust when you want the trustee to be able to give the life tenant or a capital beneficiary
additional funds for special circumstances or needs

Common Disaster Clause – Outlines the distribution of your assets if an intended beneficiary dies at the same time as you

Survival Clause – States that a beneficiary must survive you for a set period (often 30 days) before he or she can benefit
form your estate.

Guardian Appointment – Names the individual(s) who would be appointed guardian of your minor children

Testimonium and Attestation Clauses – These clauses are found at the end of your will. They ensure the legal
requirements for a validly executed will are met.

Powers:
Trustee powers: A clause that identifies the powers of the trustee is important to avoid a situation in which trustee’s
ability to act is limited to the powers established through provincial legislation or common law. Without clear direction
in the will, the powers of the trustee typically default to provincial standards, which tend to be very limited.

Other Powers: Power to borrow, lend, or renew debt obligations; Tax elections (to minimize taxes), Investment powers,
Rights of income and capital beneficiaries (may give the discretion to encroach on capital for the benefit of the life
interest beneficiary).
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TYPES OF WILLS

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 HOLOGRAPHIC WILL

Is a will that is completely handwritten.

It’s okay to write out a will by hand in many provinces,
including Ontario, but all of it must be in your own
handwriting. You must also date and sign it. You do not need
anyone to witness it.
Here is an example of a very simple, handwritten will:

“This is the Last Will and Testament of me, John Seed, of

Barrie, Ontario. I leave my entire estate to my son Jason
Seed.”
Can you anticipate any problems with this? 9
HOLOGRAPHIC WILL

John Seed Example

 What if John Seed wrote a different will before this one?

 What if Jason Seed dies before his father?
 What if John Seed has a spouse?
 What if he has another son or daughter from a first
marriage?

A very simple, handwritten will won’t work for most people.

Should be used as a last resort.

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 ENGLISH FORM WILLS

Authorized in every province, and often they are drafted by lawyers.

A typed will has to be dated and signed by the testator/testatrix in front of two
witnesses.

The two witnesses must also sign the will.

All three (you and your two witnesses) must be together when signing. (New
rules as of April 7, 2020 due to self Isolation due to Covid19)

The two witnesses cannot be beneficiaries (i.e. “people who will get
something”) under the will. They also cannot be the spouse of one of those
beneficiaries.
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 NOTARIAL
WILL
A notarial will is available only in Quebec.
• A notarized will is considered a legal deed. Therefore, the will
does not need to be probated.
• It is drawn up by a notary in the presence of a witness provided
by the notary.
• May be in French or English and must indicate date and place
where it was made.
• Once prepared, the notary reads the will to the testator or testatrix
to ensure it reflects their wishes. If desired, it may be read in the
presence of the witness.
• Once the will has been read, it must be signed by testator, the
notary, and the witness, in each other’s presence.
https://www.justice.gouv.qc.ca/en/your-money-and-y
our-possessions/wills/forms-of-will/notarial-will/
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INTERNATIONA
L WILLS
When you have assets in multiple locations around the
world, it may be advised to have an international will.
Why? Different countries may have different rules
regarding the disposal of assets at death, and they may
not recognize your Canadian Will.
An international will follows rules that have been set up
between countries that are signatories to the
“Convention Providing a Uniform Law on the Form of
an International Will” (Washington, D.C., 1973).
https://www.unidroit.org/instruments/international-will

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 OTHER TYPES 
JOINT WILL
A single document executed by two parties

 The parties make the will together, agreeing to leave their property to
beneficiaries identified under the will.
 Typically, the parties agree to leave their assets to each other.
 The will dictates what happens to the assets after the second party dies and
can be used by married couples to protect children from previous marriages.
 A flaw is that they can sometimes be difficult to interpret, and thus cause
potential challenges to the estate.
 1 will between 2

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OTHER TYPES 
MIRROR OR
RECIPROCAL WILL
 A type of mutual will in which each spouse names the other
as the beneficiary of his or her property.

 In this case a couple will draft separate wills containing the

same information, resulting in their property being left to
each other, (commonly referred to as "mirror wills").

 They will generally provide for substitute gifts to alternate

beneficiaries assuming the original beneficiary has passed
away.

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OTHER TYPES 
MUTUAL WILL

 The testator and testatrix make an agreement that prevents

them form changing their wills without getting the other
person’s consent.

 Of note, a mirror will may or may not be a mutual will

depending on the language used in the documents.

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ESTATE PLANNING:
MULTIPLE WILLS

 Some assets do not require probate. (personal effects,

automobiles, jewelry, artwork, etc.).

 A second will (the secondary will) deals exclusively with

shares of an individual’s private corporations and the other
assets listed above.

 Both wills are typically executed on the same date, and only
the primary will is submitted for probate on the person’s
death.

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 POTENTIAL CHALLENGES TO THE
VALIDITY OF A WILL
Lack of testamentary capacity

 An individual making a will must have the mental capacity to do

so; if he or she does not, the will may be declared invalid.
 In that case, the prior will of the individual is not revoked and
continues to apply.
 In the absence of a prior will, the deceased dies intestate.
 To have the necessary capacity, the testator must understand:
 The nature of the act of making a will and its effects.
 The nature and extent of his or her property.
 The potential claims of individuals, such as a spouse, children or
financially dependent person, who would normally expect to be a
beneficiary under a will.

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 POTENTIAL CHALLENGES TO THE
VALIDITY OF A WILL
Undue Influence

 A will may also be declared invalid when a testator was subject to

undue influence in preparation of the will.

 This implies coercion by one or more individuals who can influence

the testator in a way that prevents him or her from acting
independently in making decisions regarding the will.

 If there is an allegation of undue influence, the burden of proof rests

with those who are challenging the will on this basis.

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EXECUTOR / EXECUTRIX
The person(s) who is named in will to carry out the instructions of
the will.
The executor can be a individual known to the testator or a trust
company / arm’s length person with expertise in the administration of
estates. They can also be a beneficiary of the estate.
The main consideration is that they are capable, agreeable to the role,
trustworthy and reliable.
Jointly and Severally = 2 executors, either one or both may act.
Where are they located?
 It is highly recommended they executors are closely located to each other (in the
same province)

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 THE ROLE OF THE
EXECUTOR
File the claims for
insurance, pension
Locate the will and obtain
Obtain a death certificate benefits, death benefits Gather assets of the estate
probate as needed
(including CPP Death
Benefit)

Manage the investment of

Advertise for creditors Pay outstanding
Pay funeral expenses estate assets pending
and pay outstanding debts household and other bills
distribution

Complete Persinal and

Estate Income Tax
Account to beneficiaries Returns, pay taxes owing
Distribute Estate Assets
as required and obtain Clarence
Certificaites from the
CRA.

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 Funeral Expenses
DISTRIBUTION
OF ESTATE:
PRIORITY Income Taxes

ORDER
Probate fees

Accounting and Solicitor’s costs

Liabilities (incurred by estate administrator)

Commissions and fees (estate administration)

Payment of other debts

Beneficiaries
 Amount
• the size of the bequest

DISTRIB Timing
UTION • age
• lump sum
OF • instalments
ASSETS: Other considerations
HEIRS • Specific property vs. cash
• Second marriages
• Alternate beneficiaries
• Vulnerable heirs
PER CAPITA VS PER
STIRPES
Distribution of Assets
DISTRIBUTION
PRACTICE
At the time of her death, Judy’s investment portfolio was
worth $300,000. Judy had three children: Bill, Tom and
George. Her two older sons, Bill and Tom, predeceased
Judy. George has no children. George had two children
and Tom had one child. Who gets what if she leaves the
portfolio as follows:
a. To my children per stirpes
b. To my children per capita

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At the time of her death, Judy’s investment portfolio was worth $300,000. Judy
had three children: Bill, Tom and George. Her two older sons, Bill and Tom,
predeceased Judy. George has no children. George had two children and Tom had
one child. Who gets what if she leaves the portfolio as follows:
a. To my children per stirpes

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At the time of her death, Judy’s investment portfolio was worth $300,000. Judy
had three children: Bill, Tom and George. Her two older sons, Bill and Tom,
predeceased Judy. George has no children. George had two children and Tom had
one child. Who gets what if she leaves the portfolio as follows:
a. To my children per capita

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SPECIAL NEEDS
BENEFICIARIES
Minor children
 Guardianship
 Inherit property but require a trustee to
manage (if not provided in the will, a
provincial trustee will be appointed)
 Education funding
 Disabled children

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 COST OF A WILL

Legal fees for drafting a will vary with the complexities of your estate and family
situation.
A standard can cost $300 and up, not including a living will or power of attorney.
The price will vary from place to place, but in Ontario, it is not uncommon to spend
$700-$1000 for a will and both Powers of Attorney, sometimes a little more. As your
estate becomes more complex, that cost can increase.
Look for a lawyer experienced in drafting wills and in estate planning.
--------------------------------------------------------------------------------------------------
You can also write your own will (by hand = holographic Will) or with the help of an
online will writing service, such as Canadian Legal Wills (legalwills.ca) or
MakeYourWill.com (canada.makeyourwill.com), where you can create your own will
in minutes for as little as $15.
You can even access a sample will at no cost from taxtips.ca.
However, note that a do-it-yourself will may not be appropriate in all situations.29
 COST OF A WILL CONTINUED

Be sure the will you choose is legally recognized in the province of

your residence. (In Quebec, for example, a will must be notarized
to be valid.)
A notarized document is a document where the signatures are
verified and where copies of the document are “true”.
Although it is more expensive, it is a good idea to have a legal
professional review your will to ensure it conforms to current
provincial laws.

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 WHAT
HAPPENS IF
YOU DIE
WITHOUT A
WILL?
WHAT ARE
SOME
DISADVANTAG
ES OF DYING
WITHOUT A
WILL?
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Distribution of Property When a Person Dies Intestate (without a
will) in Ontario
• Without a will, no one will have authority to handle the estate until
appointed by the court.
• If you fail to prepare your own will, the province in which you legally
reside steps in and controls the distribution of your estate without regard
for wishes you may have had but failed to define in legal form.
• Thus, if you die intestate - without a valid will - the province's law of
descent and distribution comes into play.
• In Ontario, a person, usually a relative, must first apply to be appointed
as “estate trustee without a will”.
• In most other jurisdictions, this is referred to as letters of administration.
• The person appointed by the court is referred to as an administrator.

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 Dying Without a Will

If you die without a will, you are considered to have died intestate.
Disadvantages to dying without a will, include:
1. You do not get to decide how your property is disposed of.
2. A judge may decide who will be the guardian of your children if
their other parent or legal guardian does not survive you.
3. It may cost your heirs time and money by having to go through a
lengthy legal process. This includes legal fees and court costs.
4. If you are in a non-traditional family situation, such as a same-sex
or common-law marriage, it is possible that your partner will not
be considered to be your family and may be disinherited.

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 What You may not Accomplish With a Will

Here are some things that a will may not accomplish:

Disinheriting a spouse. Spousal rights are typically protected in
common-law in situations.
Transferring title to property held in ‘JTWROS’ - Joint Tenants with
Right of Survivorship where assets are afforded survivorship rights in
the event of the death of another account holder
Bequeathing all or most property to a charity when the decedent is
survived by a spouse or children, (especially if they are dependents)
Avoiding probate.

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Distribution of Property
When a Person Dies
Intestate (without a will) in
Ontario

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DISTRIBUTION OF
ESTATE
Spouse and children
a) Preferential share to spouse
 $350,000 (Ont.) to $0 (NB, NFLD, Que, PEI,
Yukon)
b) Balance of estate split with child(ren)
1. One child: 1/2 spouse, 1/2 child
2. Children: 1/3 spouse, 2/3 children per stirpes

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 Distribution of Property When a Person Dies Intestate (without a
will) in Ontario

Scenario 1 –
Intestacy where spouse and no issue (children)

Spouse inherits Property.

• In this scenario a deceased did not have a valid will.
• He was survived by his spouse, but there were no descendants
conceived before and born alive after the deceased death.
• In this instance the spouse receives the entirety of the deceased’s
property.

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 Distribution of Property When a Person Dies Intestate (without a
will) in Ontario

Scenario 2 –
Intestacy with spouse and issue
– Estate worth less than $350,000 –

Spouse inherits all

• In this instance assume there is both a spouse and descendants of
the deceased.
• It the deceased died intestate and the estate’s net value is less
than or equal to $350,000.00 then the spouse is entitled to the
property absolutely.
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 Distribution of Property When a Person Dies Intestate (without a
will) in Ontario

Scenario 3 –
Intestacy with spouse and issue
– Estate worth more than $350,000 –

Spouse and Children inherit.

• Where the estate’s net value is more than $350,000 and the
deceased died intestate then the first $350,000 is inherited by the
spouse.
• The balance of the estate is divided differently depending on the
number of children, per stirpes of the deceased.
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 Distribution of Property When a Person Dies Intestate (without a
will) in Ontario
Scenario 3b –
Intestacy with spouse and issue
– Estate worth more than $350,000 –

Spouse & 1 Child.

• Where a person dies intestate in respect of property and leaves a
spouse and one child, the spouse is entitled to one-half of the
residue of the property after payment of the $350,000 to the
Spouse.

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 SCENARIO 3B –
INTESTACY WITH
SPOUSE AND 1 CHILD
The net value of the estate was $520,000.00.

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 Distribution of Property When a Person Dies Intestate (without a
will) in Ontario
Scenario 4 –
Intestacy with spouse and issue
– Estate worth more than $350,000 –

Spouse & more than 1 Child.

• If a person dies intestate and leaves a spouse and two or more
children (per stirpes), then the spouse is entitled to 1/3 of the
residue of the property after payment of the $350,000.00 and the
children divide the 2/3 balance.

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 SCENARIO 4 – INTESTACY
WITH SPOUSE AND 2+
CHILDREN
The net value of the estate was $640,000.00.

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 Distribution of Property When a Person Dies Intestate (without
a will) in Ontario
Scenario 5 –
Intestacy with no spouse and with issue -> Children inherit

• Where a person dies intestate in respect of property and leaves

no spouse and with issue, the property shall be distributed
between the children (per stirpes) equally for those living.

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 Distribution of Property When a Person Dies Intestate (without
a will) in Ontario
Scenario 6 –
Intestacy with no spouse and no issue –> Parents inherit.

• Where a person dies intestate in respect of property and leaves

no spouse or issue, the property shall be distributed between
the parents of the deceased equally or, where there is only one
parent surviving the deceased, to that parent absolutely.

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 Distribution of Property When a Person Dies Intestate (without
a will) in Ontario
Scenario 7 –
Intestacy with no spouse, no issue, no parents -> Siblings inherit.

• Where a person dies intestate in respect of property and there

is no surviving spouse, issue or parent, the property shall be
distributed among the surviving brothers and sisters of the
intestate equally, and if any brother or sister predeceases the
intestate, the share of the deceased brother or sister shall be
distributed among his or her children equally.

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 Distribution of Property When a Person Dies Intestate
(without a will) in Ontario
Scenario 8 –
Intestacy with no spouse, no issue, no parents, no siblings
 Nephews and nieces inherit.

• Where a person dies intestate in respect of property and

there is no surviving spouse, issue, parent, brother or sister,
the property shall be distributed among the nephews and
nieces of the intestate equally.

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 Distribution of Property When a Person Dies Intestate (without a
will) in Ontario
Scenario 9 –
Intestacy with no spouse, no issue, no parents, no siblings, no
Nephews and nieces –> Next of kin inherit.
• Where a person dies intestate in respect of property and there
is no surviving spouse, issue, parent, brother, sister, nephew or
niece, the property shall be distributed among the next of kin of
equal degree of consanguinity to the intestate equally.
• So how do we determine who is the closest next of kin? The Act
states that “degrees of kindred shall be computed by counting
upward from the deceased to the nearest common ancestor
and then downward to the relative”. See the Table of
Consanguinity
• https://commons.wikimedia.org/wiki/File:Table_of_Consanguinity_showing_degrees
_of_relationship.png 48
 Distribution of Property When a Person Dies Intestate
(without a will) in Ontario
Summary of a few of the scenarios…
Dies Leaving Distribution
Spouse and no
children All to Spouse

Children Only All to Children

Spouse and One
Child First $350,000 to spouse, rest split equally (50/50)
Spouse and First $350,000 to spouse; 1/3 remainder to Spouse and 2/3 to
Children children (33/66)
Spouse and
Relatives All to Spouse

No Spouse of Child Closest Next of Kin According to Table of Consanguinity

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WILLS
CONTINU
ED

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 SELECTING A GUARDIAN

In addition to disposing of your estate, your will should

name a guardian and/or trustee to care for minor children
if both parents die at the same time, such as in an
automobile accident or a plane crash.
A guardian is a person who assumes the responsibilities
of providing the children with personal care and
(typically) of managing the estate for them.
A trustee, on the other hand, is a person or an institution
that holds or generally manages property for the benefit
of someone else under a trust agreement.
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 SELECTING A GUARDIAN

You should take great care in selecting a guardian for

your children.
You want a guardian whose philosophy on raising
children is similar to yours and who is willing to accept
the responsibility.
Through your will, you may want to provide funds to
raise your children.
You could, for instance, leave a lump sum for an addition
to the guardian's house and establish monthly payments
to cover your children's living expenses.
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 SELECTING A GUARDIAN

The guardian of the minor's estate manages the property

you leave behind for your children.
This guardian can be a person or the trust department of a
financial institution, such as a bank.
Property that you place in trust for your children can be
managed by the trustee, rather than by the guardian of the
minor's estate.

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 SELECTING A GUARDIAN – DYING
INTESTATE
Child’s share of the estate will be managed by a public
servant appointed by the court (“Public Trustee”).
Spouse will need to apply to be appointed guardian for
the property of the child.
Child entitled to property at age of majority (18),
regardless of their ability or capacity to manage the
money.
Surviving spouse will be the guardian of the child.
If no spouse, the court will appoint a guardian until age of
majority is reached. The court has full discretion in the
choosing of the guardian. 54
 REQUIREMENTS FOR A VALID WILL

A will can be drafted with or without a lawyer’s help, although legal counsel is
recommended especially to those who have expensive homes and valuable possessions or a
large sum of money to bequeath.

For a will to be considered valid, the following criteria must be met:

The will has to be executed according to your provincial laws.
You must be of sound mind at the time the will is prepared.
You must understand the results of preparing your will.
You must understand the nature and extent of the property you own.
Generally you must be at least 18 years of age, or the age of majority

See next slide for additional requirements may vary, depending on the jurisdiction

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 ALTERING OR REWRITING YOUR WILL

As a general rule, you should review your will if:

you move to a different province;
you sell property mentioned in the will;
the size and composition of your estate change;
you marry, divorce, or remarry;
or potential heirs have died or been born.

However; don't make any changes on the face of your will.

Additions, deletions, or erasures on a will that has been
signed and witnessed can invalidate the will.
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 ALTERING OR REWRITING YOUR WILL

If only a few changes are needed in your will, adding a

codicil may be the best choice.
A codicil is a document that explains, adds, or deletes
provisions in your existing will.
It identifies the will being amended and confirms the
unchanged sections of the will.
To be valid, it must conform to the legal requirements for
a will.

57
 ALTERING OR REWRITING YOUR WILL

If you wish to make major changes in your will or if you have

already added a codicil, preparing a new will is preferable to
adding a new codicil.
In the new will, (as noted earlier) include a clause revoking all
earlier wills and codicils.
If you are rewriting a will because of a remarriage, consider
drafting a Marriage Agreement (i.e. a pre-nuptial agreement).
This is a documentary agreement between spouses before marriage.
In such agreements, one or both parties often waive a right to
receive property under the other's will or under provincial law.
Be sure to consult an lawyer in drafting a marriage agreement.
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 DO YOUR CLIENTS NEED A LAWYER
TO DRAFT THEIR WILL?

There is no legal requirement that a lawyer needs to make your Will. You
should, however, get legal advice in any of the following situations:
1. if you are about to be married (a Will made before the marriage may
be cancelled by the marriage);
2. if you are under 18 years of age;
3. if you have a past history of mental impairment;
4. if you are aged (to find out about the question of "mental capacity");
5. if you are separated from your spouse;
6. if your estate is likely to be very large (to get advice on tax saving);
7. if you own assets outside of Canada.
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 ESTATE ASSETS NOT DISTRIBUTED BY
A WILL

By law, there are situations in which your assets will go directly to a

beneficiary, independently of your will.
Named Beneficiary
The first is one in which your assets, such as life insurance, annuities,
and RRSPs and most pensions, already have a named beneficiary.
Unless your beneficiary has pre-deceased you, these assets are
transferred directly without being subject to the process or expense of
probate.
In cases where the beneficiary has pre-deceased you, then the values
are transferred to your estate.

60
 ESTATE ASSETS NOT DISTRIBUTED BY
A WILL

Joint Tenancy with right of survivorship

Another situation when assets will go directly to a beneficiary occurs
when you have assets held in joint tenancy, which confers the right of
survivorship - sometimes referred to as joint tenancy with right of
survivorship (JTWROS).
Note that this is not the same as tenancy in common, where the assets are
owned in undivided shares.
For example, if a couple owns a home in joint tenancy, then the
ownership of that home passes in its entirety to the spouse upon death of
the other spouse.
However, if the same couple owns their home as tenants in common,
where the tenants have the right to dispose of their interest in the joint
property at death, there is no automatic right of survivorship and one-half
of the value of the home will count into the deceased spouse's estate. 61
 ESTATE ASSETS NOT DISTRIBUTED BY
A WILL

Joint Tenancy with right of survivorship

Another example of Joint Tenancy with right of survivorship is
in joint brokerage accounts which is owned by at least two
people, where all tenants have an equal right to the account's
assets and are afforded survivorship rights in the event of the
death of another account holder.
In this type of brokerage account, a surviving member will
inherit the total value of the other member's share of account
assets upon the death of that other member.
All members of the account are afforded the power to conduct
investment transactions within the account as well.
62
 ESTATE ASSETS NOT DISTRIBUTED BY
A WILL
Charitable Donations
You can structure charitable gifts both during your lifetime and in your will
to further your estate planning goals and make the most of available tax
credits.
There are a number of ways in which gifts of capital or property can be
made with significant tax benefits. One example of this is if you elect to
make a charitable gift through your will.
In this case, your taxable income in the year of your death is reduced by the
tax credit for charitable donations.
The gift could be up to 100 percent of your net income in the year of death,
and excess can be carried back to the preceding year.
If a similar gift was made during your lifetime, the gift could not exceed a
maximum of 75 percent of your net income, and any excess would have to
63
be carried forward for up to five years.
 DISPOSITIVE PROVISIONS

The dispositive provisions of a will include any desired gifts,

disposition of personal property or estate property.
In all dispositive provisions, a will should clearly identify the property
being disposed and the intended beneficiaries – See Robert Brooks
example next slide.
Bequest or Legacy: a provision transferring title to tangible and
intangible personal property.
Distribution to Classes: This section describes how the assets will be
distributed within a given class of beneficiaries. (i.e. – example would be
distributing assets per capita means giving equal shares to the number of
beneficiaries.)
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 ROBERT BROOKS:

Dispositive provisions - Importance for Clarity

Example:
Robert Brooks died in March 2010 leaving a handwritten, half-
page will. The will was dated and properly witnessed. The bulk
of Robert's estate consisted of a house, valued at $133,300, and
two bank accounts with a total value of $144,000. The residual
of the estate was made up of personal effects and household
furnishings valued at $500.

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 Dispositive provisions
Example:
The dispositive provisions of the will began as follows:
I leave my property [address and legal description of the real
property] to my brother George Brooks [address] Executor
with Power of Attorney. Also my accounts at Royal Bank of
Canada Merritt B.C.

Robert then listed the names and addresses of his five friends,
followed by the statement:
I would like all the people named above share equally in my
estate.

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 Dispositive provisions
Example:
George took the position that the first clause was intended to effect
specific gifts of the house and bank accounts to him, and that the other
five beneficiaries were to divide the residue of the estate.
The other five beneficiaries argued that the reference to "Executor with
Power of Attorney" in the first clause meant that George was to take
possession of the assets only in his capacity as executor.
According to them, they were to share equally in Robert's estate, with
George receiving nothing.

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 Dispositive provisions
Example:
In the case of Robert Brooks' will, the Court concluded, having
regard to the language of the will that the will intended to divide all
of Robert's estate (including the house and the bank accounts)
equally among George and the other five named beneficiaries.

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