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Planning your Will - Part 2 Legal Aspects
Entitlement
Introduction
What is a Will?
Rules for Preparing a Valid Will
What Makes a Will Invalid?
Court Jurisdiction
Entitlement
Entitlement is based on circumstances, but in any event, such battles are very costly, and as a general rule, such costs are payable by the estate. It is especially important for you to obtain legal advice regarding the preparation and drafting of your Will, if you anticipate that there may be the possibility of litigation between your beneficiaries. Of course, the ultimate weapon to prevent such bickering, is to ensure that there is no money left in your estate when you die. Unfortunately (depending on your point of view), few people know exactly when this moment will occur.
Introduction
These are a series of articles relating to topics hopefully of interest, such as "Wills", "Powers of Attorney", "Living Wills", and "Committeeship". These topics are important to most people, but have a special relevance to those, like yourselves, who probably have a family member or close friend with alzheimers, or those who wish to prepare in the unfortunate case that you may become mentally disabled yourself. The articles will touch on those matters which I think are most important, but they will not be completely exhaustive, and address special issues each reader may have.
What is a Will?
A Will is a document prepared by you, or on your behalf, which takes effect upon your death to direct those who survive how to deal with your property, financial affairs, and to a limited extent, your body. For a Will to be valid, it must meet the requirements of the Wills Act of British Columbia.
Rules for Preparing a Valid Will
The basic rules of preparing a valid Will include the following:
1. The Will must be in writing and signed by the person making it (testator (male) or testatrix (female)) in the presence of two witnesses who must not be beneficiaries in the Will. If you make the mistake of having a beneficiary named in the Will sign as a witness to the Will, the beneficiary is disentitled to receive the bequest under the Will.
2. If you have made a previous Will, you will have to revoke all former Wills in the new one.
3. You must have "testamentary capacity" or the ability to know what you know and understand your Will is and what it does, at the time you made and signed your Will. A person with a mental illness is capable of properly signing a Will, provided the person has testamentary capacity when the Will is prepared and signed. If there is any question whether or not the person making the Will is mentally competent to do so, it would be prudent to co-ordinate the Will drafting and signing process with input from a physician or psychiatrist.
4. The Will must be legible and provide coherent and understandable instructions. If you choose to prepare your own Will (and I advise against it), your Will will speak for itself. Ignore any temptation to be silly or clever in your Will, as this could cause others to question your testamentary capacity to make the Will.
5. The Will must be prepared of your own free will, and represent your voluntary wishes.
What Makes a Will Invalid?
There are a number of things that can make a Will invalid. For example, a Will is invalid if it does not comply with one of the previously mentioned rules. If you marry after making your Will, the marriage voids the Will unless the Will specifically provides that it was made in contemplation of an upcoming marriage. Additionally, if you have been divorced after preparing your Will, the Will will be read as if your ex-spouse predeceased you. Your will remains valid if you become mentally incapable of changing it after you make it.
Court Jurisdiction
Even if you make a valid Will, the Courts do have jurisdiction to alter the terms of your Will if it is apparent that you have not, from an objective point of view, properly provided for your spouse and/or your children within the provisions of your Will. For example, if you choose to disinherit one of your children, for reasons which might seem valid to you, your disinherited child will have an opportunity to apply to the Courts to vary your Will pursuant to the Wills Variation Act. Such a variation could occur on the basis that even though your disinherited child may not have had a model relationship with you, as a loving parent you ought to have made reasonable provision for this child in your Will.
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