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Practice Material on Wills

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Practice Material on Wills CAUTION The Professional Legal Training Course provides the Practice Material to users as an aid to developing entry level competence, with the understanding that neither the contributors nor the Professional Legal Training Course are providing legal or other professional advice. Practice Material users must exercise their professional judgment about the accuracy, utility and applicability of the material. In addition, the users must refer to the relevant legislation, case law, administrative guidelines, rules, and other primary sources. Forms and precedents are provided throughout the Practice Material. The users also must consider carefully their applicability to the client’s circumstances and their consistency with the client’s instructions. The Law Society of British Columbia and the Professional Legal Training Course can accept no responsibility for any errors or omissions in the Practice Material and expressly disclaim such responsibility. Professional Legal Training Course 2021 Practice Material Wills Recent Contributors: Allison A. Curley Denese Espeut-Post Deidre J. Herbert J. Jeffrey Locke Hugh S. McLellan Practice Material Editor: Katie McConchie September 2021 A requirement for admission to the bar of British Columbia, the Professional Legal Training Course is supported by grants from the Law Society of British Columbia and the Law Foundation of British Columbia. © 2021 The Law Society of British Columbia. See lawsociety.bc.ca > Terms of use. WILLS CONTENTS WILLS AND INTESTATE SUCCESSION [§1.01] The Estate 1 [§1.02] Disposition of Property by Will 2 [§1.03] Disposition of Property on Intestacy 2 1. Consequences of Intestacy 2 2. Intestacy Under WESA 3 3. Intestacy Under the Indian Act 5 [§1.04] Further Reading 6 FORMAL VALIDITY OF WILLS AND INTERPRETING WILLS [§2.01] Formalities 7 [§2.02] Curing Formal Deficiencies in a Will 7 [§2.03] Conflict of Law 8 [§2.04] Wills by Indigenous People 8 [§2.05] Revoking a Will 8 [§2.06] Altering a Will 9 [§2.07] Republishing and Reviving a Will 10 [§2.08] Special Types of Wills 10 1. Mutual Wills 10 2. Holograph Wills 10 [§2.09] Testamentary Gifts—Lapse and Ademption 11 1. Types of Gifts 11 2. Ademption 11 3. Lapse 11 TESTAMENTARY CAPACITY [§3.01] Introduction 12 [§3.02] Capacity of Minors 12 [§3.03] Test for Mental Capacity 12 [§3.04] Types of Cases 13 1. Delusions 13 2. Dementia 13 [§3.05] Burden of Proof—Testamentary Capacity 13 [§3.06] Knowledge and Approval 15 (ii) [§3.07] Suspicious Circumstances 16 1. Test 16 2. Burden of Proof 17 [§3.08] Undue Influence 18 1. Test 18 2. Burden of Proof 18 [§3.09] Declaring Wills Void Under the Indian Act 19 [§3.10] Further Reading 19 PREPARING A WILL [§4.01] Introduction to Preparing a Will 20 [§4.02] Taking Instructions 20 1. Taking Instructions Directly 20 2. Making Notes of the Meeting 20 3. Obtaining Background Information 21 4. Ascertaining the Assets and Liabilities 21 5. Providing Basic Information to the Client 21 6. Naming Executors and Trustees 22 7. Naming Beneficiaries 24 8. Tax Considerations 25 9. Naming Guardians 25 10. Enduring Powers of Attorney, Representation Agreements and Committeeship 26 11. Using a Memorandum 29 [§4.03] Circumstances Requiring Special Consideration 30 1. Homestead or Dower Legislation 30 2. Restrictions on Alienation 30 3. Life Insurance Declarations 30 4. Registered Retirement Savings Plans and Similar Assets 30 5. Charitable Gifts 30 6. The Rule Against Perpetuities 31 7. Termination, Revocation and Variation of Trusts 31 8. Beneficiaries Receiving Disability Assistance 32 [§4.04] Practical Tips for Drafting the Will 32 1. Planning for Contingencies 32 2. Language Use 32 3. Numbering, Headings and Order 33 4. Organizing the Contents of the Will 33 5. Drafting Dispositive Clauses 34 6. Capital and Stirpital Distributions 35 7. Clauses Benefiting the Executor and Trustee 38 8. Common Drafting Pitfalls 38 [§4.05] Will Execution Procedures 39 [§4.06] Post-Execution Procedures 39 1. Wills Notices 39 2. Wills Storage 39 3. Reporting to the Client 40 4. Destroying Prior Wills and Will Files 40 (iii) 5. Releasing a Will From Safekeeping 40 6. Releasing a Wills File 40 [§4.07] Further Reading 40 CLAIMS MADE AGAINST AN ESTATE [§5.01] Introduction 41 [§5.02] Challenges to a Will 41 [§5.03] Claims Against an Estate on Intestacy 41 [§5.04] Claims Against an Estate by Unrelated Parties 42 [§5.05] Claims for Unjust Enrichment 42 1. Unjust Enrichment 42 2. Quantum Meruit 42 3. Constructive Trusts 42 4. Case Law Examples 43 SOLICITORS’ DUTIES AND RESPONSIBILITIES [§6.01] Duty of Care in Taking Instructions 44 [§6.02] Duty of Care to Beneficiaries 45 1. Disappointed Beneficiaries of Failed Gifts 45 2. Disappointed Beneficiaries Not Provided For 45 3. Disappointed Beneficiaries Disinherited 46 [§6.03] Common Errors 47 APPENDICES—NOT AVAILABLE IN ONLINE VERSION Appendix 1 – Special Testimonium Clauses 48 Appendix 2 – Execution Instructions Letter 52 Appendix 3 – Will Planning Information Sheet 53 Appendix 4 – Sample Specimen Trust Will 58 PROBATE AND ESTATE ADMINISTRATION INITIAL ADVICE TO PROSPECTIVE PERSONAL REPRESENTATIVE [§7.01] Introduction 63 [§7.02] Identification of the Personal Representative 63 [§7.03] Deciding Whether to Act as a Personal Representative 63 [§7.04] Immediate Responsibilities of a Personal Representative 64 1. Disposition of Remains 64 2. Care and Management of Assets 64 3. Dealing With Liabilities 65 4. Preparing to Administer the Estate 65 (iv) 5. Accounting and Expenses Prior to the Grant 65 6. Safety Deposit Boxes 65 [§7.05] Preparing to Make the Application for Probate or Administration 65 1. Gathering Information 65 2. Reviewing the Will and Advising 67 3. Intestacy, Lapse and Ademption 67 4. Choice of Applicant for Letters of Administration 67 5. Other Grants of Administration 68 6. Murder 68 7. Survivorship 68 8 Presumption of Death 68 9 Other Duties and Powers of Executors and Administrators 69 10. Scope of Lawyer’s Retainer 69 11. Insolvent Estates 70 12. Estates of Indigenous People 70 [§7.06] Public Guardian and Trustee as Official Administrator 70 [§7.07] Guardians and Committees 70 ASSETS AND LIABILITIES: VALUATION AND INVENTORY [§8.01] Introduction 71 [§8.02] Purpose of the Inventory 71 [§8.03] Assets and Liabilities 71 1. Property Passing in the Will 71 2. Property Passing Outside the Will 71 3. Liabilities 72 [§8.04] Form of Inventory 72 [§8.05] Valuation 72 [§8.06] Authorization to Obtain Information 73 DEVOLUTION OF ASSETS [§9.01] Types of Assets 74 [§9.02] Assets Not Passing to the Personal Representative 74 1. Joint Tenancies 74 2. Life Insurance Policies and Proceeds 74 3. Pensions and Retirement Plans 75 4. Imminent Death Donation 75 5. Powers of Appointment 75 6. Employment Benefits 75 7. Contractual and Other Obligations 76 8. Insolvent and Bankrupt Estates 76 9. Statutory Benefits 76 10. Voluntary Payments 76 11. Family Property 76 12. Community of Property 76 13. Interests in Trusts 76 14. Designated Beneficiary Investments 76 (v) [§9.03] Assets Passing to the Personal Representative 76 [§9.04] Conflict of Laws 76 1. Immovables 77 2. Movables 77 [§9.05] Location of Assets 77 APPLICATIONS FOR PROBATE AND ADMINISTRATION [§10.01] Introduction 78 [§10.02] Jurisdiction 78 [§10.03] Practice 78 [§10.04] Place and Time of Application 78 [§10.05] Probate Applications 79 1. Documents Required for a Typical Probate Application 79 2. Other Affidavits May Be Required 79 3. Procedure 80 4. Probate Fees 80 5. Notice Required Under WESA 81 6. Variations of Grant — Executor Cannot Act 83 7. Special Forms of Probate 84 [§10.06] Administration Applications 85 1. Documents for Typical Administration Application 85 2. Procedure 85 3. Intestate Successor Not Consenting to Application 85 4. Other Grants of Administration 86 5. Security for Grant of Administration 86 OTHER APPLICATIONS IN THE COURSE OF ADMINISTRATION [§11.01] Introduction 87 [§11.02] Rectification and Construction of Wills 87 [§11.03] Probate Jurisdiction: Rectification of Will 87 1. Addition of Words 87 2. Application of WESA s. 59 87 3. Procedure 87 [§11.04] Construction Jurisdiction: Interpreting a Will 88 1. General 88 2. Ascertaining the Will-Maker’s Intent 88 3. Judicial Approaches 88 4. Rules of Construction 89 5. Procedure 89 [§11.05] Curing Deficiencies 89 [§11.06] Application for Advice and Directions 90 [§11.07] Dispute Resolution 90 1. Disputes Among Executors and Trustees 90 2. Removing an Executor or Trustee 90 (vi) [§11.08] Other Applications 91 1. Giving Trustees New Powers 91 2. Cy-près 92 3. Distribution Under Direction of Court 92 [§11.09] General Supervisory Jurisdiction of the Court 92 TRANSMISSION AND TRANSFER OF ASSETS [§12.01] Introduction 93 [§12.02] Executor’s Year 93 [§12.03] Legislation Affecting Transfer of Assets 93 1. Delay of Distribution Under WESA 93 2. Wills Variation Under WESA 93 3. Income Tax Act 94 4. Intestacies 94 [§12.04] Transmission and Transfer Procedures 95 1. General 95 2. Real Property 95 3. Personal Property 95 CREDITORS [§13.01] Introduction 98 [§13.02] General 98 1. General Duties of the Representative Relating to Creditors’ Claims 98 2. Types of Creditors’ Claims 98 3. Defences to Creditors’ Claims 99 [§13.03] Liabilities of the Deceased 99 1. Contingent or Continuing 99 2. Unenforceable or Statute-Barred 99 3. Family Creditors 99 4. Pledges 100 5. Spousal and Child Support 100 6. Creditor or Debtor a Beneficiary or Executor 100 [§13.04] Liabilities Relating to the Death: Funeral Expenses 100 [§13.05] Liabilities Incurred by the Personal Representative 101 [§13.06] Administering the Liabilities 101 1. Instructions and Retainer 101 2. Searches and Inquiries 101 3. Proof of Claims 102 4. Compromise of Claims 102 5. Payment of Liabilities 102 6.
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