What is a Will?
A Will is a written document formally executed according to the requirements of the Wills Act whereby a person arranges for the disposition of his property and assets after death and advises how his dependants should be taken care of. The requirements for signing a Will are very precise and if not followed the Will could be invalid. For any questions concerning the execution of a Will please feel free to call on one of the lawyers at Porter Ramsay.
Careful drafting and phrasing of a Will are essential. If the Court does not agree with the way you have prepared your Will, or if parts are unclear, it may in certain circumstances decide to change the Will or even declare it invalid.
Each Province has its own statutory provisions relating to drafting and executing a Will. The lawyers at Porter Ramsay will ensure that your Will meets the requirements within British Columbia.
Making a Will
A Will can be made by any person over the age of nineteen who has mental capacity or any person under age nineteen who has been previously or presently is married, is in the armed services, or is a mariner.
What Property May You Dispose of By Your Will?
Generally speaking a person can dispose of those assets owned by him during his lifetime where a prior disposition has not been made. Exclusions to this general principal occur:
- Where assets are owned in joint tenancy with right of survivorship where the property or interest in property goes automatically to the survivor.
- Named beneficiary situations such as life insurance and registered retirement savings plans where the asset is transferred directly to a named person rather than flowing through an estate.
- Situations under the Family Relations Act where a triggering event has occurred such as separation or divorce.
Even if you think an asset is yours and you have the right to transfer it by a Will you may not be able to do so. The lawyers at Porter Ramsay can be of great assistance in determining what assets can be disposed of by a Will.
What Happens if You Die Without a Will?
In the event that you do not have a Will, your wishes may not be followed even if they are known. Instead your estate will be distributed in accordance with the Provincial Law. Any one or more of the following events may occur:
- Distribution of assets may be slower and more expensive.
- Taxes may be greater therefore reducing the value of the estate.
- Your spouse may receive less than you planned.
- Your children will receive equal shares regardless of any special needs or considerations.
- Guardianship of minor children may not have been established and appropriate guardians may not have been named.
- All minors will obtain their share upon reaching the age of majority whether or not they have the ability at that time to handle the responsibility.
- There will be no bequests to friends or charities.
- Family heirlooms may be sold rather than being passed on to succeeding generations.
- If you, your spouse, and your children are involved in a common tragedy your estate may be distributed to your spouse’s family.
- If there are no relatives, your estate will go to the government.
How Permanent is a Will?
A Will can be revoked (cancelled) or revised at any time while the maker remains mentally competent. However even with a Will the Wills Variation Act in British Columbia allows the Court to change the provisions of a Will if it appears that a spouse, child, or parent who should have been named has been omitted. This will include a common-law spouse who has lived with and been maintained by the deceased for a period in excess of two years.
In addition in certain circumstances Wills can be varied or found invalid by the Courts. Therefore proper drafting of a Will is essential.
A Will automatically becomes void upon remarriage unless specific provisions are made in the Will relating to the marriage. Otherwise there is no termination period and a Will remains valid during the lifetime of the maker.
Where Should a Will be Kept?
A Will should be kept in a safe place. Porter Ramsay has large fireproof vaults which they keep for the purposes of storing Wills for their clients. If your Will is stored in a private safety deposit box or personal home safe it may be more difficult for survivors to obtain a copy of the Will. Wills stored at Porter Ramsay are kept in strict confidence and not released to any party other than the maker without written directions or a death certificate.
Lawyers practicing in Wills: