How to make changes to a Will

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Are you contemplating making changes to an existing Will but aren’t sure how?

There are three ways to change a non-electronic Will. If you have an electronic Will, the only way to make changes is to execute a new Will. For a non-electronic Will, you may choose to make a new Will, you may execute what is called a codicil, or you may make one or several interlineations.

A codicil is an instrument that is meant to be read with a Will and must meet all the same requirements as a Will (including being in writing, signed at its end by the will-maker, and having 2 witnesses), but only refers to the specific provisions that are to be altered by the codicil. If there is a relatively minor change, a codicil may be easier than making a new Will.

Interlineations are physical alterations to the existing Will which are made by adding or striking out words in the Will. These physical changes must also be witnessed and signed off on, and they can make a Will difficult to read and understand. Interlineations are not a recommended method of altering a Will, as the changes may not be found to be valid, and it is usually better to execute a new Will or a codicil. If you wish to make any substantive changes, making a new Will is the best method to ensure your wishes are followed.

You might not even need to make an alteration to your Will. Have you considered a Memorandum? Read our article on Adding a Memorandum to a Will.

Did you mean to ask How to Revoke a Will? Click here to read our article on Revoking a Will.

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How to Revoke a Will?

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What do you do if you have made a Will, but you have changed your mind and you want to revoke it? You have a few options to revoke a valid Will. You may choose to make a new valid Will that contains a clause that revokes all previous Wills. You also may burn the Will or tear it up, or otherwise destroy it with the intention of revoking it, or instruct someone to destroy it with the intention of revoking it. There is also the option for you to make a writing that declares your intention to revoke all or part of your Will.

If you make a writing stating your intention to revoke all or part of your Will, in addition to being in writing, it must be both signed by you at its end and signed by 2 or more witnesses who must be present for your signature. In addition to the above, if you have an electronic Will, you may revoke it by deleting the electronic version of the Will with the intention of revoking it.

You should be cautious that you do not accidentally revoke a Will when you do not intend to. If an original Will was last in the possession of the will-maker and it cannot be found when the will-maker dies, the presumption is that the will-maker destroyed it with the intent to revoke. This can be avoided by ensuring that the original Will is kept in a safe place that is known to the executor, such as with a lawyer’s office.

 

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What is a Memorandum to a Will?

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A Memorandum to a Will can be a helpful tool if the Will-maker has items they wish to gift. It is essentially a list or schedule of items and how the Will-maker wishes to distribute them. This may be something to consider for collectors, or those with numerous sentimental items that will be distributed to various persons or organizations.

There are two types of Memorandum: one that forms part of the Will, and one that does not. If the Memorandum is to form part of the Will, there are certain requirements that must be met. These requirements include that

  • The memorandum must be incorporated into the Will by reference,
  • it must be in writing, and
  • it must be signed before the Will is executed.
  • The assets/items must be clearly identifiable.

A potential downside of a Memorandum that forms part of the Will is that it is difficult to change or to add to, and the same strict rules that apply to a Will will apply to the Memorandum. It is recommended that if an item holds significant financial or sentimental value it should be included as a specific bequest in the Will rather than in a Memorandum.

The other option is a Memorandum that is not intended to be legally binding on the executor, but rather a guide directing the personal representative on how assets are to be distributed. The advantage is this form of Memorandum can easily be changed by the Will-maker, and they may add and remove assets/items as they go. However, because this form is a guide for personal representatives, not a requirement, there is a chance that the assets/items may not end up with who the Will-maker intends them to.

Read our Trusts & Estate Law articles for more information. You can also read our How to Make Changes to a Will Article.

If you’re not sure whether a Memorandum or a Bequest would be better contact Heath Law in Nanaimo to help you with your Will.

 

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Considerations of a Will-Maker in appointing a Guardian for children

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Planning for what happens when you die can be very stressful. In addition to planning for how you would like your property, possessions, and assets distributed, if you have minor children, you will also want to consider appointing a successor Guardian. A Guardian of a child is responsible for making parenting decisions, including making important decisions such as where the child will go to school, healthcare decisions, and overall ensuring to act in the best interests of the child.

It is important to consider appointing a successor Guardian if you have minor children. Generally, the biological parents of a child are the Guardians. A Step-parent of the child is not a Guardian of that child unless they have been appointed by a Court Order. If one Guardian parent dies without appointing a Guardian in their Will, the other Guardian parent will become the sole Guardian of the child. If a sole Guardian of a child dies without appointing a successor Guardian, the Public Guardian and Trustee will become the child’s property guardian, and the Director under the Child, Family, and Community Service Act becomes the child’s personal guardian.

Anyone else who wants to be the child’s Guardian will need to apply to the Court for an Order, which can be a stressful and time-consuming process. If a child’s remaining living parent is not a Guardian of the child when the Guardian parent dies, the non-guardian parent does not automatically become a Guardian of the child. They would need to apply to the Court for an Order to appoint them as a Guardian.

When choosing who you want to appoint as a successor Guardian for your child in your Will, the only relevant consideration is the best interest of the child. The person you choose will become your child’s legal Guardian when you die. It is important to take the decision of who to appoint seriously, as they will take on all of your parenting responsibilities and will be responsible for your child’s well-being. There are many things you should consider when making this important choice.

You may wish to consider things such as

  • the person’s relationship with the child,
  • whether they would be able to afford to look after the child, and
  • if they would be able to meet the needs of the child.

Other factors may include

  • religion (the child’s and the proposed Guardian’s),
  • the child’s cultural heritage,
  • whether the child would need to leave their school or community,
  • whether the proposed Guardian has other children and
  • any other factors that you consider important.

When determining the best interests of a child, every case is different. Often family members are appointed successor guardians.

Choosing who to appoint as a successor guardian for your children can be an overwhelming process, especially if you have a complex family dynamic. For help in creating a Will and appointing a Guardian for your children, contact Heath Law

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Considerations of a Will-Maker in appointing an Executor

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Are you in the process of creating a will and have questions about appointing an Executor?

When deciding who you will choose to be the Executor of your Will, there are various factors you may wish to consider.

These factors include:

  • the potential Executor’s willingness to act,
  • whether you trust them,
  • whether they are familiar with you, and
  • whether they have the time and the ability to carry out the duties of an Executor.

A good approach is to ask your potential Executor if they would be willing to take on the task.

Because your Executor will be responsible for carrying out the instructions in your Will and dealing with your assets and debts, it is best to choose someone you trust. If they are familiar with your situation, it will likely be easier to deal with your Estate. Your Executor must be able to handle the work that comes with handling an Estate, which includes

  • locating property,
  • applying for probate,
  • distributing assets and gifts to beneficiaries, and
  • filing your Estate’s tax return to name a few.

Most people appoint a family member or a close friend, however, you may also appoint a lawyer, a notary public, or a private trust company. You can appoint more than one Executor, in which case they will have to act together. You will want to consider if the person or people you wish to appoint as Executor will put the interests of the Estate first and if they will have the capacity to take on the task.

You should also consider if the person you wish to appoint is likely to outlive you and ensure to name an alternate Executor in case the person you have chosen is unable or unwilling to act. If you have concerns about a potential Executor acting in their own self-interest, you may wish to hire an impartial third party to be your Executor or co-executor (such as a lawyer or notary public). You will also want to consider how your Executor will be compensated. If your Executor is also one of your beneficiaries who is getting a gift under the Will, they will not be able to claim additional compensation unless you authorize such compensation in your Will.

Still have questions about your Will? Click here to read more, check out our blog article about Appointing a Guardian for children, or contact us.

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7 Reasons to Update Your Will and Related Estate Planning Documents

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7 Reasons to Update Your Will and Related Estate Planning Documents

End of life and incapacity planning are among the most important tasks an individual can complete to ensure that their assets, personal care, and health care are handled appropriately. While it’s not pleasant to think about one’s own death or potential incapacity due to sickness or injury, taking the steps to ensure that your estate planning documents reflect your wishes is well worth the effort.

1. You haven’t drafted a Will: It’s integral that you have a Will so that you can ensure your assets are given to the beneficiaries of your choosing. Otherwise, the intestacy provisions of the Wills Estates and Succession Act of British Columbia will dictate who ends up with an inheritance and who doesn’t. Beloved friends or family members may inadvertently be excluded.

2. You receive a problematic or terminal medical diagnosis: To ensure that you receive satisfactory financial and legal management during periods when you don’t have legal capacity, as an example, falling into a coma, it would be prudent to execute an Enduring Power of Attorney. This document appoints an individual of your choosing to manage your legal and financial affairs. A Power of Attorney does not permit someone to make health care decisions on your behalf – this requires the appointment of a Representative under a Representation Agreement.

3. You have specific instructions you want healthcare providers to follow: If you have specific preferences regarding the scope of medical treatment provided to you when you’re incapacitated, you should execute an Advance Directive. This document can cover preferences such as “do not resuscitate” or “do not provide blood transfusions”.

4. A beneficiary under your Will has become disabled: Unfortunately, if people with disabilities obtain inheritances, their government benefits could be discontinued. To avoid this situation, a will-maker needs to ensure their Will provides fully discretionary trusts for any disabled beneficiaries.

5. You marry, enter a marriage-like relationship or get divorced: While the intestacy provisions of the Wills Estates and Succession Act ensure spouses are provided for in some fashion in the event that there is no Will, the preferable option is to have a Will that fully reflects your wishes. Alternatively, if you divorce or separate from a partner, you need to update your Will. You also need to closely review who benefits from accounts such as group benefits or insurance plans, as the current beneficiary might be your ex.

6. Your financial position significantly changes: If you come into a substantial amount of money by inheritance or other means, you’ll likely want to revise your estate plan to allocate the assets differently. If you do not, a large portion of the funds could fall into the category of residue, and may not go to an intended beneficiary. On the other hand, decreases in income that can come with retirement or losing employment may create a need to revise your Will. If you sell or dispose of assets specifically referenced in your Will to fund your financial needs, the beneficiaries will no longer obtain those gifts. It is prudent to plan ahead and revise your Will as your financial circumstances change.

7. New Grandchildren: If your current Will names specific grandchildren, only those named grandchildren will obtain a share of your Estate. You will need to update your Will to include any new grandchildren.

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Capacity of a Will-Maker and Undue Influence

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Capacity of a Will-Maker and Undue Influence:

Jung Estate v. Jung Estate, 2022 BCSC 1298 (“Jung Estate”) is an instructive case regarding testamentary capacity, the testator’s knowledge and approval of the contents of their Will, and the concept of undue influence. By way of background, the testator in Jung Estate was Rose Jung. Rose was described by witnesses as passive and non-confrontational. She left two surviving children: Steven and Jerry. Her assets consisted of a house worth over $1.6 million and the residue of her estate, which was fully spent in paying the expenses of her estate. Multiple factors brought Rose’s capacity into question and caused suspicion around her knowledge and approval of her Will. She made a new Will in 2017, just one month before her passing, although she’d also made a Will in 2001. Despite Rose’s history of treating her sons equally, which was reflected in her 2001 Will, the 2017 Will essentially disinherited Steven, yet offered Jerry a gift of over $1.6 million. Steven started the action; after he passed away, his wife took over the litigation, as she was the executor of Steven’s estate. The action successfully invalidated Rose’s 2017 Will.

In Jung Estate, the court laid out the law surrounding testamentary capacity. It stated that the formal validity requirements of the Will having been met lead to the presumption that Rose, as the testator, had necessary capacity as well as knowledge and approval of the contents of her Will. However, the presumption was rebutted due to the suspicious circumstances raised. The burden to prove the validity of the Will then shifted to Jerry: the person seeking to show the Will was valid. In making its ultimate finding that Rose did not have the requisite capacity, the court discussed and highlighted some of the circumstances that raised suspicion.

In looking to the details of Rose’s situation, the court held that testators must have a disposing mind and memory, such that they appreciate the nature and extent of their assets, as well as the consequences of their Will. The court noted that Rose could not comprehend the value of $1 million, nor did she understand that her gift to Steven, being the residue of the estate, had essentially no value. She did not appreciate the consequences of her 2017 Will. While the lawyer who assisted Rose with her 2017 Will, Mr. Micner, had arranged for a specialist to assess Rose’s capacity, the specialist noted that Mr. Micner “provided him with ‘the softest definition’ of testamentary capacity he had ever received from a lawyer”. The specialist noted that Rose didn’t understand the extent of her wealth, nor could she manage her finances.

Looking to Rose’s poor health at the point she made and executed her 2017 Will, the court noted that Rose became depressed after her husband’s death, and began suffering memory issues and frequent falls starting in 2012. Her health deteriorated to the point that she needed full-time care by 2016, having issues including heart problems, renal dysfunction, and dementia. Rose was a vulnerable individual.

The court also noted the degradation of the relationship between Steven and Jerry. It discussed how the brothers’ relationship took a marked decline after Jerry went through an acrimonious divorce. Steven, a lawyer, had assisted Jerry for some time through the litigation, but was forced to step away due to significant health issues. Jerry was very hurt. Jerry became alienated from his family; he eventually began refusing to visit Steven, even for the holidays. Near the point of Rose’s death, Jerry had began refusing to communicate with Steven about their mother’s care, and refusing to recognize Steven’s power of attorney (with Rose as the subject) or to provide him with receipts.

While the court found that Rose lacked capacity to have validly made or signed the Will, and as such the Will was invalid on the ground of capacity alone, the court went on to discuss markers of a testators’ knowledge and approval. The court discussed the differences between capacity versus knowledge and approval; it stated that capacity includes a person’s ability to make choices, while knowledge and approval include the testator’s ability to understand and approve of their choices. For proper knowledge, the testator must be aware of the magnitude of their estate and the effects of their chosen dispositions. The Will was held to be invalid on this ground too, in addition to the ground of inadequate testator capacity.

Finally, the court explored the possibility that Jerry had unduly influenced Rose. The court held that the Wills Estates and Succession Act (WESA) requires that a party claiming undue influence must show the potential for dependence or domination of the testator. If they’re able to show that potential, the onus to prove that the testator’s will was not overborne through undue influence falls on the person seeking to validate the Will. The court noted that Jerry had the potential for dominance for several reasons. First, Rose was very susceptible to financial abuse. Second, Jerry was instrumental in causing temporary alienation between Rose and Steven. Further, Jerry made the arrangements for Rose to meet with Mr. Micner. While the potential did exist, the court held that Jerry had not exerted undue influence over Rose. Jerry had respected Mr. Micner’s instructions that meetings with Rose must occur without Jerry’s presence, and Jerry further respected Rose undergoing an independent medical assessment.

Jung Estate serves as a guideline of factors that may cause an individual’s Will to be held as invalid. The case warns lawyers of the importance of proper documentation around a testator’s capacity, as well as around any suspicious circumstances or interactions. Estate litigation can be time-consuming, emotional, and costly. The lawyers at Heath Law LLP are experienced in preparing enforceable Wills that meet the needs of testators and recognize the rights of beneficiaries.

If you have questions about preparing a will, contact us today to schedule a consultation.

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The Death of a Child’s Guardian

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Parents are considered guardians of their children at law, and issues can arise if a guardian passes away. If a guardian passes away, there are family law rules to consider that determine who will become the child’s guardian. These considerations apply to children under the age of 19.

If two parents were the joint guardians of the child, and one passes, the surviving guardian will assume sole guardianship and all parental responsibilities, unless a Court Order or agreement states otherwise. If only one parent was the child’s guardian, and they pass, the other parent does not automatically become the sole guardian. That said, the surviving parent of a child who is not a guardian may be appointed as guardian through an application to Court under the Family Law Act. This may be the case if one parent solely raised the child, while the non-guardian parent did not spend any regular time with the child. If a child does not have a guardian for a duration of time, the Public Guardian and Trustee (the PGT) will step in. The PGT is a BC corporation with the goal of protecting individuals who do not have legal capacity, such as children.

A parent who is a guardian of a child may choose to appoint a successor guardian. The guardian can do this through their Will or specified form under the Family Law Act. It is important to remember that the successor guardian cannot be granted more rights than the recently deceased guardian. Further, appointments of successor guardians can only be made in accordance with the “best interests of the child” principles. These principles are involved in nearly all aspects of family law and require that the best interests of the child be considered, such as the child’s mental and physical well-being.

The law surrounding guardianship can be complex. The experienced lawyers at Heath Law LLP are happy to assist you with family law and other types of legal matters.

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What Happens in BC When a Person Dies Without a Will?

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What happens when a person dies without creating a will?

In BC, when a person dies without creating a will this is referred to as intestacy. Intestacy prompts the obvious question: what happens to the person’s assets? The Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 (WESA), establishes a standard asset distribution scheme in the event of intestacy. In general, the intestate’s (deceased’s) spouse is first in line but their share of the assets depends on whether the intestate had children or descendants. Other relatives may also be entitled to a share if there is no spouse or children. However, before any assets are distributed, the court must appoint an administrator of the estate.

An administrator of an intestate estate has various responsibilities including the disposition of the remains, collecting and documenting assets and liabilities, keeping expense records, identifying potential beneficiaries, and eventually distributing the assets. Section 130 of WESA gives priority to the spouse to be appointed as administrator and gives them the ability to nominate an alternate. If the spouse is not appointed, the children of the deceased are next in priority order. Additionally, the consent of the majority of the deceased’s children can affect which child is ultimately appointed. If neither the spouse nor the children of the deceased are appointed, the court may appoint a person they consider appropriate in the circumstances.

According to section 25 of WESA, the standard asset distribution scheme will apply when there is no will (i.e. intestacy has occurred), as well as when a will is silent on the status of a part of the estate (partial intestacy). The starting point for distribution is always the spouse. WESA defines “spouses” as married people or people living in a “marriage-like relationship” for at least two years. People will no longer be spouses if they terminate their relationship, or in the case of marriage, divorce. Notably, WESA will not consider a couple “separated” if they begin living together again within one year of separation for the purpose of reconciliation, or for one or more periods totalling more than 90 days. If a person dies with a spouse but no children, section 20 of WESA determines that the spouse is entitled to the entire estate. Section 21 describes other possibilities: if there is a spouse and children, the spouse is entitled to the household furnishings and $300 000 with the remainder being split equally with half to the spouse and half to the children. If the children are from a deceased’s previous relationship, the $300 000 is reduced to $150 000. Spouses are entitled to their $300 000 (or $150 000) before any assets are distributed to the children. This means that if the total value of the estate is less than those amounts, the spouse will be entitled to the entire estate. In the rare circumstance that an intestate had two or more spouses, section 22 directs the surviving spouses to come to an agreement. If they cannot, the court may decide what happens for them.

If there is no spouse but the deceased had children, section 23 of WESA says the children split the estate equally among themselves. Section 23 goes on to detail which other relatives may be able to claim interest in the estate if there is no spouse or children. In priority order, these are parents, siblings, grandparents, siblings of parents and cousins, great grandparents, and descendants of great grandparents (second cousins etc.). If none of these relatives can be found, the estate will “escheat” to the provincial government according to section 23(2)(f) of WESA. This means that the government will be entitled to the deceased’s assets.

Finally, if a person dies without a will and there are no surviving guardians for a child, the default is that the director under the Child, Family and Community Service Act becomes the personal guardian of the child and the Public Guardian and Trustee becomes the property guardian of the child. If a family member or other interested person wishes to become a guardian, they must apply to the court under section 51 of the Family Law Act for an order appointing them. The court bases this decision on the best interests of the child and as such the court has final discretion on who may become the guardian.

Overall the framework created by WESA provides a clear pathway for resolving how an intestate estate must be distributed as well as the care and guardianship of any surviving minor children.

If you don’t have a will, or you’re ready to begin estate planning so your beneficiaries receive their intended inheritance, contact Heath Law 

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Is an Unsigned Will Valid in British Columbia?

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There is often a delay between a lawyer completing a client’s will, and that client being available to execute (sign) it. The Covid-19 Pandemic has only lengthened these delays, which can be problematic if the will-maker happens to pass away prior to executing the new will.

The Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 (WESA) lays out the requirements for a valid will, including that the will must be duly executed by the will-maker. If a new will is found to be invalid, the pre-existing valid will governs the distribution of assets. However, s.58 of WESA provides that the court may choose to cure a formally invalid will. In order to use s.58, the court must first be satisfied that the will is authentic and that it represents the will-maker’s deliberate, fixed, and final intensions regarding the disposal of their property upon death.

In a recent case, Bishop Estate v. Sheardown, 2021 BCSC 1571, the will of 76-year-old Marilyn Bishop was brought before the court. A charity had been listed as a beneficiary in Ms. Bishop’s previous will made in 2014. In early 2020, Ms. Bishop instructed her lawyer to draft a new will that removed the charity and added new gifts to family members. Ms. Bishop had an appointment to execute the will on March 20, 2020. Unfortunately, Ms. Bishop was unable to meet in person with her lawyer due to the pandemic and passed away four months later without having executed her will.

The charity argued that Ms. Bishop’s failure to execute the will was evidence that she had changed her mind and that the new will did not represent her final intentions. The court rejected that argument, noting that Ms. Bishop had become closer to her family in the years leading up to her death thereby explaining the new gifts, that she had reviewed and filled in the blanks in the new will, and that Ms. Bishop’s failure to execute the will remotely was not evidence of a change of heart. Therefore, the court found that the new will satisfied the test in s.58 and ordered that it be fully effective.

If you have concerns about the validity of your will or other questions, please call Heath Law LLP to book a consultation.

 

 

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