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

• f the testator’s

death and is later born alive.

• Property excluded from an Estate - not distributed by will
• r 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
• r 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
• r 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
• r deleting characters, words or provisions for:
• An accidental slip, omission, misdescription
• r 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.