bout de papier, Vol. 5, No. 3 (1987) — Fall 1987 // Automne 1987, p. 43
Once you have reached the conclusion that a Will is a necessity, there are several considerations in giving proper instructions to your lawyer.
First, who do you wish to appoint as Executor of your estate. In normal circumstances, a spouse will appoint his or her partner as Executor. However, in situations where the administration of the estate will be complex, as in the case where there is property or there are beneficiaries outside the Province of Ontario, I recommend appointing a Trust Company to act as Executor, the rationale being that a Trust Company will be better able to ensure your testamentary directives and wishes are carried out with expediency.
Next one must consider who will be the alternate Executor in the event that the first predeceases you or is unwilling or unable to act. This should be a person over the age of majority who lives in the area where your estate is to be administered. If more than one person is appointed to act, I recommend an uneven number be used, as a majority decision will then bind the others. You do not want a situation where two Executors can’t decide the same way on an issue and must resort to complicated means of resolving the matter.
It is also important to keep your lawyer or Executor informed as to the status of your assets and liabilities as they change. This enables them to quickly and easily take all necessary steps to finalize matters. At the least, a list of the following should be provided: where your banking is done, where your safety deposit box is kept, legal descriptions of property you own or lease, insurance policy companies and numbers, pension plans, death benefits, outstanding charge accounts, automobile or other personal loans and copies of agreements that may bind your estate such as partnership, cohabitation, marriage or separation agreements.
Of course in Ontario, we have the Family Law Act, 1986, to take into account when deciding on how you wish your estate to be distributed, and I recommend you consult your lawyer in the event you are planning on making distributions to persons who are not your spouse or dependants.
You must also be aware that any jointly held personalty or realty automatically vests in the surviving joint tenant and does not fall into your estate. In other words, you cannot bequeath property owned jointly with another person.
Aside from tax considerations, which are not addressed here, you must next decide if you wish to leave any specific gifts to specific people or charities. I do not recommend to clients that they draw up a list of every record album they own and bequeath each to a specitic person. Obviously, the terms of a Will should be relevant and general enough to survive as long as possible, and some of the items listed may not even be around at the date of death. However, provision can be made to leave specific gifts to certain persons in the event that that person survives you and in the event the article is owned by you at the date of death.
Having appointed your Executors, paid the debts of the estate, made specific bequests and allowed your executors to call in and convert the remainder for distribution, you must decide to whom the residue is to be distributed The typical case is to leave the residue to your spouse; however, you must consider to whom the residue will go in the event your spouse predeceases you. Again, the typical Will leaves the residue to one’s children in equal shares per stirpes. This means that if you have three children, and two of them have children of their own, and one of your children predeceases you leaving two grandchildren, that those grandchildren will share one third of your residue while each of your children who survive you has one third.
It is important to note that where you have, for example, only one infant child, you make provision for a third alternate beneficiary of the residue of your estate in the event of the untimely death of the whole family in an automobile or airplane accident. But also, if an infant child survives you but fails to reach the age of majority and the capital of the residue of your estate has yet to be distributed to him or her, there should be provision for what will then happen to the fund.
When it is possible for infant children to inherit the residue, I recommend to clients that we put in a clause allowing the Executor to use the income from the trust monies and any part of the capital as may be necessary to maintain the needs of the child, with the income going directly to the child at the age of majority and the capital to be distributed only upon the child reaching an older age, such as 21 or 25 years.
One should also be aware that in Ontario, use of the word “child” refers to all children and makes no distinction between “legitimate” and “illegitimate” children. To circumvent this, I recommend re-instatement of the distinction to prevent the possibility of unknown “children” coming out of the wood-work, so to speak, and making a claim against the estate. However, as there are many instances today of children being born out of wedlock, I also recommend we specifically include such children where they are known to the Testator.
Finally, one may wish to appoint Guardians of infant children in the Will. This provision is not binding, but merely an expression of your wishes.
A further consideration is specific burial requests. These too are not binding on your Executor, but are merely an expression of your wishes. I recommend you apprise your Executors in advance of your wishes.
In summary, I advise all persons wishing to execute a Last Will and Testament to obtain proper legal advice for their specific circumstances.
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Originally published in bout de papier, Vol. 5, No. 3 (1987) — Fall 1987 // Automne 1987, p. 43. Read the rest of this issue →
