Legal Considerations
The Law of Wills is complex;
Dramatic and serious consequences result from a Will;
The Law applicable to Wills is generally within the jurisdiction of each Province, so
Our Legal Team has outlined certain Legal Considerations that are generally applicable to each Province;
These Legal Considerations are not intended to be an exhaustive list of all legal considerations;
CanadaWills.com will inform you of the many important legal issues concerning your Will;
You may wish to obtain legal advice on the effect of these Legal Considerations prior to completing a Will on this web site.
 
Legal Consideration Topics
1. What property can be gifted under a Will?
2. The formal requirements of a Will
3. How to revoke a Will?
4. How to change a Will?
5. What can affect the validity of a Will?
6. The Executor/Trustee
 - Duties and Responsibilities
 - Who to choose
7. Guardians (who to choose)
8. How to give?
  
I. Personal Effects & Articles
    
(a) Memoranda
    
(b) Specific Bequests
  II. Cash
  III. Residue or Remainder of Estate
9. What claims can be made against your estate?
10. Frequently Asked Questions in making a will
11. Important Definitions of Legal Terms
12. Examples and Illustrations
13. I’ve Read the Caution Zone
1. What property can be gifted under a Will?
  • Generally, those assets that you own, have control of or have a beneficial interest in.
  • Personal Property (cars, jewellery, stocks, bank accounts, etc.)
  • Real Estate.
  • You cannot gift property that you own if it is owned in joint tenancy as this type of property vests in the surviving joint tenant on your death irrespective of what your Will may say (Click Here for Example).
  • You will not be able to gift property that you have promised contractually (e.g., spousal agreements or shareholders agreements).
  • You will not be able to gift property that is subject to certain legislation (e.g., matrimonial property & dependant’s relief).
  • You will not be able to gift property that is subject to certain legal claims.

2. The formal requirements of a Will
  • Must be in writing.
  • Must be signed at its end by the Testator.
  • Testator's signature must be made by him or her in the presence of 2 or more witnesses that are both present at the same time.
  • The 2 or more witnesses must sign the Will (as witnesses) in the presence of the Testator.
  • The Testator must be of the Age of Majority in his or her Province.
  • If a witness is a beneficiary under the Will or a spouse of a beneficiary, any gift in favour of such beneficiary will fail.
  • If a witness is the executor/trustee under the Will, then any clause within the Will entitling the trustee to charge professional fees in addition to executor remuneration will be void.

3. How to revoke a will?
  • In most Provinces, the marriage of a Testator after signing a Will revokes the Will unless there is a clause in the Will specifying that the Will was made "in contemplation of my marriage to (Mary Smith)".
  • In most Provinces, a Court Ordered Separation or Divorce may invalidate certain provisions within a Will that are made in favour of a Testator's spouse unless a contrary intention appears in the Will.
  • A valid later Will.
  • A writing that specifically revokes the existing Will signed by the Testator and properly witnessed as in the case of a Will.
  • The destruction of the Will by the Testator or a person in the presence of the Testator acting on his or her direction.

4. How to change a will?
  • Make a new Will.
  • Sign a Codicil [a document that is signed like a Will but only alters certain provisions (click here for sample wording)].

5. What can affect the validity of a will?
  • The Testator must have knowledge of the assets to be disposed of in the Will,
  • The Testator, by his or her Will, must intend to dispose of his or her property effective on his or her death,
  • The Testator must know what is contemplated in the Will and must desire those results (if the Testator lacks this intention the Will may be declared invalid),
  • The Testator must appreciate the consequences that will result from the contents of the Will,
  • The Testator must appreciate the claims to the Estate that may result due to the contents of the Will,
  • The Testator must be making the Will voluntarily,
  • The Testator's intention must be genuine-if a provision in a Will is found by a Court to be due to force, fraud, fear or undue influence by another person, the Will may be declared invalid,
  • The Testator must have Mental Capacity and be free of mental disorder.
  • If your Mental Capacity is in doubt, it may help to have your Doctor witness you signing the Will-alternatively, you may wish to obtain a written opinion from your Doctor that, in his or her opinion, you have the Capacity to sign a Will (this may require a mental status examination).
  • If there are circumstances that a Court may consider "Suspicious", this may result in the Court concluding that the Testator lacked Capacity.
  • If you sign a Will and then get married, your Will is considered revoked (cancelled) in most Provinces.
  • If you want the terms of your Will to have effect after your marriage, your Will must be stated to be made “…in contemplation of my marriage to …(name of intended spouse)…which will occur on…(date of marriage)” If you sign a Will and then obtain a Court Ordered Separation or Divorce, gifts to your former spouse (or your spouse’s appointment as executor/trustee) will be cancelled in most Provinces unless you specify in your Will that it is made “in contemplation of my divorce from…(name of spouse)”.

6. The Executor/Trustee

      Duties and Responsibilities

  • This person takes charge upon the death of the Testator.
  • They are responsible for your burial.
  • They must Probate the Will with the Court.
  • They must determine and gather up all the assets of the Estate.
  • They must determine and pay the debts of the Estate.
  • They must pay out the gifts you intended under the Will.

      Who to Choose

  • Someone you trust.
  • Someone that generally shares your views.
  • Someone who will feel responsible to fulfill your wishes.
  • Someone that has the ability to deal with the many duties and responsibilities of an Executor.
  • Usually it will be a spouse, your children, or friends.
  • If the Estate is complicated (or the nature of the assets requires special expertise), you may wish to have professional executors (Lawyer, Chartered Accountant) or in some cases a corporate Trustee such as a Trust Company.

7. Guardians (who to choose)
  • Generally, a parent can appoint a Guardian for their infant children.
  • Identify this person (or, if you wish to appoint a husband and wife, these persons) in your Will.
  • In the absence of such an appointment, the Court will be required to consider who should be appointed; a Court Application will expose your Estate to significant legal expenses.
  • The Guardian should share as much in common with you as possible.
  • would they make the same decisions about your children as you would, if you were alive?
  • would they be as dedicated to your children as you would have been?
  • if they have their own children, can they treat your children on an equal footing?
  • will they spend your children's inheritance in a manner consistent with your wishes?
  • do they live in your community or will the children be removed from all their friends and community activities?
  • do they share your religious beliefs (if this is important to you)
  • do you trust them?
  • do your children like them?

8. How to give?

   I  Personal Effects & Articles

    
(a)  Memoranda

  • In circumstances where you wish to gift a large number of personal articles to various people and where these personal articles do not have great financial value, you can attach to your Will a Memoranda of Gifts.
  • This Memoranda must be in writing and signed by you before you sign your Will (i.e., it should be dated earlier than the date of your Will).
  • This Memoranda should be mentioned in your Will as forming part of your Will.
  • Click here for an example of a Memoranda.
  • Gifts under a Memoranda, given the informal nature of the gift, can be challenged. If it is vital to you that a particular item go to a particular beneficiary, we recommend that you make a specific Bequest in the Will.
  • They must pay out the gifts you intended under the Will.

     (b)  Specific Bequests

  • Where you wish to leave an intended recipient a valuable article or piece of your personal property, the preferable course of action would be for you to leave a specific bequest in your Will to that effect (e.g., your antique General Electric radio to your friend, John…).
  • It is important that you provide as much description of the specific article as possible to avoid uncertainty. For example, if you have many rings, don’t state “my nice ring to my sister…” as what is “nice” may be disputed. It would be preferable to state “my diamond ring to my sister…and my opal ring to my friend…”.
  • It is also important to remember that if you dispose of the specific article during your lifetime the gift to the intended recipient fails.

   II  Cash

  • In addition to a Memoranda or Specific Bequests, you may choose to make certain gifts in the form of cash.
  • It is important to note that if your Will is completed many years in advance of your death, the value of the cash gift may decrease due to the cost of living and inflation. In other words, the purchasing power of $1.00 today, will likely be very different (i.e., much lower) 20 years from now.
  • Also, remember that the greater the amount of your cash gifts, the less that you can give by way of a gift of the residue

   III  Residue or Remainder of Estate

  • The Residue of an Estate is what remains after: payment of all expenses and liabilities of the Estate; payment of all specific cash bequests; and the delivery of any personal articles that were the subject of specific bequests (or included in a Memoranda of Articles).
  • It must be remembered that all expenses to the Estate must be paid (including any taxes owed by the Estate) before the intended recipients of the residue are entitled to the gift of the residue.
  • Therefore, it is important that you calculate the value of your Estate and then factor in the specific gifts of cash and articles and the debts, liabilities and expenses of the Estate. Then you will have a fair expectation of the amount of the gift that is available for you to give by way of a gift of the residue.

9. What claims can be made against your estate?

   Claims by Dependants

  • Most Provinces have legislation that permits “dependants”, usually a child or spouse of a Testator, to apply to Court for "adequate provision for (his or her) proper maintenance or support". This means that a spouse or child can ask a Judge to carve out from the Estate the type (or amount) of gift that the Judge thinks the Testator should have left for the child or spouse
  • For the purposes of this web site, assume that:
      - “child” includes all adopted and illegitimate children as well as any child that is neither your biological nor adopted child, but is treated by you as though he or she is your child;
      - “spouse” includes all common law spouses of the same or opposite sex,
  • The definition of “child” and “spouse” varies from Province to Province,
  • In certain Provinces “dependants” are defined to also include; (a) the parent or grand-parent of the Testator; (b) the brother or sister of the Testator.

   Claims by Creditors

  • Contractual obligations of the Testator or civil wrongs (torts) committed by the Testator
  • Claims by persons alleging an interest in your Estate by virtue of a trust or constructive trust (a legal doctrine used by the Court where the Court will not allow a person to retain property that, in good conscience, they should not be permitted to retain).

   Income Tax


10. Frequently Asked Questions (FAQ's) in making a will

Q. Am I prevented from disinheriting my child even where I have very serious reasons to do so? 
A. In some Provinces, the Court will consider the reasons a Testator wishes to disinherit a child. In order for the Judge to know the reasons, there should be an explanation provided by the Testator either as a paragraph within the Will or within a separate document attached to the Will (this could take the form of a sworn statement in Affidavit form). In certain Provinces, the Court is interested only in whether your child was financially dependent on you for support during your lifetime. Therefore, in light of the differences from Province to Province and from circumstance to circumstance, we recommend that prior to completing your Will on this Site, you seek out legal advice on this issue from a lawyer in your Province

Q. I designated my former spouse as the beneficiary under my pension plan. Can I change the beneficiary to be my new spouse through my Will? 
A. You should seek out expert legal advice in your Province prior to completing a Will on this Site as the implications and consequences are very significant and vary from Province to Province.

Q. I want to leave a charitable gift in my Will, what should I be concerned about?
A. You should check with Canada Customs and Revenue Agency (formerly Revenue Canada) to ensure that, indeed, the group you wish to benefit is a charitable organization. Also, ensure that you know the proper name of the organization.

Q. What if I own property outside of my Province?
A. Depending on where your other property is located, you may wish to have a separate Will covering this other property in that jurisdiction. We recommend that you obtain legal advice in your Province prior to completing a Will that involves property both within and outside (or just outside) your Province. You may also wish to retain legal advice in the jurisdiction where your property is located.

Q. Can I appoint the same person the sole Executor of my Estate and the Guardian of my children?
A. You can. However, by having the same person serve in both capacities, you are running a risk that the money earmarked for the children may not make it to them. When different people occupy these 2 positions, one may act as a security check on the activities of the other.

Q. I made certain designations (as to beneficiaries) in certain life insurance and RRSP contracts. Are these designations affected by divorce or remarriage? Can I change these designations in a new Will?
A. These situations carry extremely important consequences and the answers vary from Province to Province. We recommend that you obtain legal advice in your Province prior to completing a Will on this Site.


11. Important Definitions of Legal Terms
  • Age of Majority - "Age at which a person may contract (usually 18 or 19 in most Provinces); sometimes referred to as full age; legal age; adulthood. Age at which one may execute a valid Will or vote.
  • Bequest - "a gift by Will of personal property…a legacy".
  • Codicil - "a supplement or an addition to a Will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in a Will".
  • "Dependant's Relief Legislation" - In most Provinces there is legislation (the name of the legislation may vary from Province to Province) that permits a child (definition of a 'child' may include all biological or adopted children as well as any child that is neither your biological nor adopted child but is treated by you as though he or she is your child) or spouse (definition could include a common law spouse of the same or opposite sex) and sometimes parents, grand-parents and brothers and sisters to apply to Court for maintenance and support where reasonable support for maintenance has not been made in the Will. If the Court concludes that, based on a number of different considerations, there has not been adequate maintenance, it will vary the Will and order a lump sum or periodic payment out of the Estate. In some Provinces the considerations viewed by the Court include the following: the moral obligation of the Testator; the intentions of the Testator, the size of the Estate, the financial, mental and physical circumstances of the claimant.
  • Executor Remuneration - In most Provinces, legislation prescribes the remuneration in the form of a fair and reasonable allowance based on the assets of the Estate for his or her care, the pains and trouble and the time spent.
  • Intestate - "a person is said to die intestate when he or she dies without making a Will, or dies without leaving anything to testify what his or her wishes were with respect to the disposal of his or her property after his or her death".
  • Intestate Succession - "a succession is called "intestate" when the deceased has left no Will, or when his or her Will has been revoked or annulled as irregular".
  • Intestate Successors - These persons are deemed by each Province's legislation, as the persons upon whom an intestate's Estate will devolve (be distributed) and the amount that these persons will receive.
  • Issue - "includes all lineal descendants of the ancestor"
  • Joint Tenancy - "the ownership of land in common by several persons where there is a right of survivorship; i.e., where on the death of one joint owner the land as a whole vests in the survivors, and can only be disposed of Will by the last surviving owner"
  • Mental Capacity - "contemplates the ability to understand the nature and effect of the act in which a person is engaged and the business he is transacting…such a measure of intelligence, understanding, memory, and judgment (relative to the particular transaction) as will enable the person to understand the nature of the act"
  • Probate - An Order granted by a Judge of the Court to the effect that a Will of a certain person has been proved and registered in Court and that administration of the Estate has been granted to an Executor/Trustee proving the Will, the Executor/Trustee having first sworn to administer the assets of the Estate and having completed an inventory of the Estate and agreeing to account for the Estate assets when called upon.
  • Residue - The amount of an Estate that remains after all charges, debts, liabilities, and specific bequests have been paid and specific gifts of articles delivered.
  • Suspicious Circumstances - Any circumstances surrounding the signing or preparation of a Will that casts doubt on the Testator's capacity to make a Will or touch upon a Testator's intention relative to the Will's contents, such circumstances including: beneficiary involvement in clandestine Will preparation, Testator's dependence on beneficiary or isolation from "natural" beneficiaries, dramatic changes from the provisions contained in an earlier Will and a Testator's seriously deteriorating health.
  • Testator - "one who makes a Will".
  • Trust - "a property interest held by one person for the benefit of another person".
  • Undue Influence - "where a person makes a disposition of property under such circumstances as to show or give rise to the presumption that he has not been allowed to exercise a free and deliberate judgment on the matter".
  • Will - "the legal expression or declaration of a person's mind or wishes as to the disposition of his property, to be performed or to take effect after his death".

12. Examples and Illustrations
  • Intestate Succession (the following is a simplified example)

    By virtue of the Estate Administration Act of British Columbia if a person dies without a Will (intestate), the person's Estate would be distributed in the following manner: If spouse and no children or issue, all to spouse; If spouse and 1 child or issue, 1st $65,000 to spouse and the remainder split 50/50 between spouse and child/issue; if spouse and more than 1 child, 1st $65,000 to spouse and the remainder split 1/3 to spouse, 2/3 to children; If issue but no spouse, to issue; If an intestate dies leaving no spouse or issue, the person's Estate goes to the person's father and mother in equal shares if both are living; If an intestate dies leaving no spouse, issue, father or mother, the person's Estate goes to the person's brothers and sisters in equal shares; If an intestate dies leaving no spouse, issue, father, mother, brother or sister, the person's Estate goes to the person's nephews and nieces in equal shares.

  • Joint Tenancy Where spouses are the registered owner of a home "as joint tenants", then on the death of one of the spouses, the surviving spouse is vested with full ownership of the home irrespective of what the deceased spouse's Will may say.

  • Codicil

    This is a Codicil to the last Will of me, [name], of [address], British Columbia, which last Will is dated [date of Will] and is referred to in this Codicil as “my Will”.

    1. [insert desired changes]

    2. In all other respects I confirm my Will.

    Signed by [name] as a Codicil to [his/her] Will on [month, day, year]


    (a Codicil must be properly completed and signed liked a Will; 2 witnesses, etc.)

  • Memoranda of Articles

    I make this Memorandum on [month, day, year] and by it direct my Executor and Trustee to deliver the items described below that are owned by me at my death to the person indicated, if that person survives me: 
     
     
       Item     Recipient
    1.
    2.
    3.
    [description of item]
    [description of item]
    [description of item]
    [full name and address]
    [full name and address]
    [full name and address]

     Signed by me at [location], British Columbia.

  • ______________
    [testator name]

13. I’ve read the Caution Zone
  • This site does not make specific provision for common law relationships or same-sex partners. In light of recent caselaw and legislative changes, persons in a common law or same-sex relationship should, for the purposes of completing a Will on this site, consider themselves “Married”. If you find this unsatisfactory or, if you have any concerns on this subject, we recommend that you not complete a Will on this site and, instead, seek the assistance of legal counsel in your Province.
  • If you are “Married”, your spouse can make a claim under legislation in your Province. The claim can be for an equalization of assets or for adequate maintenance and support. Basically, if the Court agrees with the spouse’s claim, the Court will revise your Will accordingly. If you are concerned in relation to the type of claim your spouse can make against your Estate, we would recommend that you not complete a Will until you have obtained legal counsel in your Province.
  • If, in your Will, you are purposely not leaving a substantial portion of your Estate to your spouse, we would recommend that you consult with legal counsel prior to signing your Will.
  • A Will completed on this Site does not allow you to leave your Spouse less than one hundred percent of the residue of your estate. If this is unacceptable to you, we recommend that you obtain legal advice, prior to signing your Will.
  • If you wish to leave a Gift to a person other than your Spouse, the only way you can do this on this Site is to give that person a Specific Bequest of a personal article or cash. If this is unacceptable to you, we recommend that you obtain legal counsel prior to signing your Will.
  • If you intend on separating or divorcing (or if you recently have), we would recommend that you seek legal counsel prior to signing a Will.
  • If you complete a Will and then marry, your Will is revoked when this marriage occurs and you should therefore complete a new Will immediately following your marriage.
  • If you complete a Will and then divorce, any gift to your spouse (or an appointment of your spouse as your executor/trustee) may be cancelled. If you intend to have such gift or appointment continue after the divorce, you should complete a new Will after your divorce.
  • If you intend on either disinheriting certain of your children or providing gifts to your children in unequal amounts, your children can make application to Court for a greater share of your Estate. In these circumstances, we would recommend that you obtain legal counsel prior to signing a Will.
  • If you are uncertain as to whether someone will be considered your “child” because he or she was adopted by you, is your illegitimate biological child or is neither your biological nor adopted child but has been treated by you as though he or she was your child, we recommend that you obtain legal advice in your Province prior to signing a Will. A Will completed on this Site does not allow you to leave less than one hundred percent of the residue of your Estate to your Children.
  • If you wish to leave a Gift to a person other than one of your Children, the only way to do this on this Site is to give that person a Specific Bequest of a personal article or cash. If this is unacceptable to you, we recommend that you obtain legal advice prior to signing your Will.
  • If your Estate is substantial and your infant children are the beneficiaries, you may wish to create certain trusts. This will require that you obtain the assistance of legal counsel in order to properly complete a Will.
  • If your Estate is substantial and your spouse is the beneficiary, you may wish to obtain legal advice prior to signing a Will in order to consider a trust for your spouse. This may result in certain tax advantages.
  • If your Estate is substantial, you may wish to not complete a Will until you have received expert advice from Estate planners, tax planners and legal counsel with a view to reducing the taxes that may be payable upon your death.
  • If you are uncertain as to whether you have the necessary mental competency to complete a Will, we would recommend that you obtain legal advice prior to signing a Will.
  • If you feel pressured by certain persons to complete a Will in a manner that is not consistent with your wishes, we would recommend that you obtain legal advice prior to signing a Will.
  • If you are not comfortable with the legal jargon or terms contained or used on this site or if you do not fully understand any of the legal terms or instructions contained on this site, we would recommend that you obtain legal advice prior to signing a Will.
  • If after completing your Will on this site, you don’t fully understand all the details and contents of your Will, we would recommend that you not sign the Will without first obtaining legal advice.

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