One of the most important documents that most individuals have prepared in the course of their lifetimes is the one that does not take effect until the time of their death. Almost everyone should have a legal will to govern what will happen to their possessions, and in some cases their children, in the event of death.
Will Requirements
In British Columbia there are many formal requirements that must be followed in order to draft and sign a valid will. There are requirements that the person making the will (the testator or testatrix, depending on gender) be nineteen years of age or older, be mentally competent and live in British Columbia. The will must be signed by the testator and two witnesses at the end of the will, who must all be present at the same time for the signing. The pages may be initialled, but must not be signed other than at the end of the will, as there is case law that states that the will ends where it is first signed, even if that signature is at the bottom of the first page.
Will Clauses
The actual body of the will does several things. It generally revokes any previous wills (but not designations under life insurance policies or registered retirement savings plans), appoints an executor, gives the estate assets to the executor on certain trusts setting forth what happens with the estate, appoints a guardian for any minor children, and gives the executor various powers to allow the executor to effectively manage the estate assets.
In the case of a married person, the first named executor is generally the testator’s spouse. There is generally at least one more person named in case the spouse is not then able or willing to act as executor (i.e. they may both die in a common accident).
Similarly, in the case of a married person, the most common distribution of assets is to leave all to the surviving spouse. This has been changing in recent years, with many second (and later) marriages necessitating making provisions for children and others from previous relationships. There is generally also a clause saying what happens if the person(s) first named fail to survive, and often a further provision saying what happens if none of the previously-named persons survive.
Perhaps the most important reason for many individuals to make a will has nothing to do with their assets, but with their children. A will can validly appoint one or more guardians for infant children in the event that both parents die before the children reach the age of majority (which is nineteen years in many jurisdictions including British Columbia, generally eighteen years in others).
A further section of many wills provides the executor with authority to manage assets the same way as the testator could if alive, which is different from the power that the executor would have if not for that section of the will. In general, absent contrary instructions in the will, an executor is prevented from carrying on business, owning and mortgaging property, purchasing various shares and mutual funds, and many other activities that it may be advisable to empower the executor to do in certain circumstances.
Pamela Palmer - I have a Juris Doctor (law) degree from the University of Saskatchewan, which I obtained in 1991. After articling in Vancouver for a ...
