By Lorne Welwood
On a recent trip to McBride, some people suggested my next article in the Goat be about wills. They have seen situations (as I have) where there are problems for families when a spouse or parent dies with either no will, an outdated Will or a do-it-yourself will.
If you, as a BC resident, dies without a valid will, the government has already effectively written one for you in the Wills, Estates and Succession Act (“WESA”) and it may well not be what you would have wanted.
An adult “of sound and disposing mind” may make a will appointing one or more Executors to carry out the terms of the will, describing their authority and setting out how the net estate assets are to be distributed to beneficiaries (heirs). There are legal formalities for a valid Will and requirements to make adequate provision in it for one’s spouse and/or children. Will-makers with minor children will also want to appoint guardians for them in their wills.
If you die without a valid will, someone will need to apply to the Supreme Court of BC to be appointed administrator of your estate, to collect and preserve your assets, apply for CPP death benefit, pay your liabilities and funeral expenses, file tax returns and distribute the balance among your heirs as prescribed in WESA. The person appointed may not be who you would have chosen, and the distribution may not be what you would have wanted. Likewise, if you have a very old will, it may not reflect your current wishes, the executor you chose may have died and so on.
Lawyers preparing a will have a legal and professional obligation to be satisfied that the client is “of sound and disposing mind.” This means, among other things, you will be asked to produce valid photo ID and provide information about your spouse and children, if any, as well as your assets and liabilities. They must also ask you specific questions about your assurance that you completely trust those you choose to be your executor or alternate executor. This is not because they are nosy, but because it is part of assessing “sound and disposing mind.” Also, some things such as assets jointly held or with named beneficiaries such as life insurance, RRSPs, RRIFs, TFSAs and so on, pass outside the will, but have tax and other consequences for your estate and should be considered in your planning.
