What Guardians Need to Know: The Will

March 2, 2018 Hull & Hull LLP Estate & Trust, Estate Planning, Guardianship, Trustees, Uncategorized, Wills 0 Comments

Guardians of property (and attorneys for property) need to make reasonable efforts to determine whether the incapable person has a Will, and if so, to determine what the provisions of the Will are. This requirement is mandated by s. 33.1 of the Substitute Decisions Act (“the Act”).

Section 33.2 of the Act authorizes the guardian to obtain information from third parties with respect to the Will. The section requires that a person having custody or control of property belonging to the incapable person provide the person’s guardian with any information requested by the guardian that concerns the incapable person, and to deliver the property of the incapable person to the guardian when requested. “Property” is specifically deemed to include the incapable person’s Will.

Why is this important? Because a guardian is required to not dispose of property that is the subject of a specific bequest in the incapable person’s Will (other than money): s. 35.1 of the Act.

This prohibition is subject to certain exceptions. The property may be disposed of if the disposition of that property is necessary to comply with the guardian’s duties, or the guardian may make a gift of the property to the person entitled to it under the Will, if the gift is authorized under s. 37 of the Act. Section 37 sets out rules that apply to the making of gifts of the incapable person’s property.

In the event that property is the subject of a specific gift, and is disposed of by the guardian, the doctrine of ademption does not apply. Rather, the person who was entitled to the property under the Will is entitled to receive from the residue of the estate the equivalent of a corresponding right to the proceeds of the disposition, without interest: s. 36(1) of the Act. This is, however, subject to a contrary intention set out in the person’s Will.

The provisions relating to determining the terms of the Will and dispositions of property under a Will apply equally to attorneys acting under a Power of Attorney: s. 38(1) of the Act.

Have a great weekend.

Paul Trudelle

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