Drafting Your Last Will and Testament

A Will allows you to chose an executor who will administer your estate.  If you die without a Will, the Court will select a person to fill this position.  The Court appointee may well not be the person you would prefer.  Further, a Will allows you to select the beneficiaries of your estate.  If you die without a Will, the beneficiaries will be determined in accordance with provincial legislation.

If you die without a Will  and there are children entitled to share your estate who are under the age of majority, the Court appointed administrator of your estate is required to pay a child’s share into Court or to the Government until the child attains the age of majority.  This can result in delays and expense, whereas with a properly drafted Will, the money could be readily used for the benefit of the child.

A Will is effective from the time of death and the executor may deal with the estate immediately.  If you die without a Will, the administrator has no authority until the Court appointment.  This results in a period of time after the time of death during which no one has legal authority to deal with your estate.

A Will allows you to undertake tax and family planning for the overall benefit of your family.  Without a Will, you do not have the flexibility to consider and deal with the various needs of your family members and to attempt to minimize the tax consequences of death.

Generally, it is more expensive to administer an estate if there is no Will.  There may be additional legal costs involved in appointing an Administrator.  In some circumstances, the Administrator may be required to post a bond to guarantee performance.

Singh Lyn llp has the expertise that you need and we can help you determine your assets and liabilities, appoint executor(s) for your estate, appoint guardians for any minor children, create trusts for your children, and ensure any business interests that you may have are considered in drafting your Final Will & Testament.

The lawyer who is called upon to draft a will for a client has a heavy onus placed upon him or her. As well as being accountable to the client, the lawyer may also be liable to the intended beneficiary or beneficiaries for any act or omission in carrying out the instructions of the client that frustrates the client’s testamentary intentions.

The lawyer should ensure that the will is drafted in language sufficiently clear and unambiguous, so as to minimize the likelihood of an application for the advice
and direction of the court as to the meaning of the particular words used. This would include taking appropriate care in descriptions of specific property and
of the intended beneficiaries (whether described by name or by class), as well as in the description of any conditions governing entitlement of a beneficiary to a
bequest or devise.

The lawyer should also ensure, as much as possible, that there are no practical barriers in the way of the estate trustee’s administration of the estate. For example, the
will should give appropriately extensive powers and authority to the estate trustee. This will minimize the likelihood of an application to vary the terms of a trust set out in the will so as to expand the estate trustee’s authority to permit particular actions.

Finally, it is a prudent post-signing practice for the lawyer to alert the client to future events that may require a review of the will to see if it is still appropriate. Such events would include, for example, marriage, divorce, births, deaths, adoptions, change of domicile or residence, and substantial changes in net worth.


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