Tag: Drafting Wills
Most of us are used to meeting our clients in person. With that option on hold for now, we are having to adopt new practices, like “virtual” meetings. How can we make virtual meetings work for estate planning where communication is so important?
Like many of you, we are turning to technology.
Remote meeting software, like Skype and Zoom, allow us to communicate, see and hear our clients and vice versa. And yet, there can still be a disconnect in trying to ensure that both parties understand one another.
There is now software that can help with that communication. Hull e-State Planner, which we created, is cloud based software that can be accessed from home and shared with your client via Zoom or Skype. It’s a visual platform so you and your client can literally be on the same page – even in different locations.
The client’s family tree and list of assets are displayed on the screen.
You can drag and drop assets, creating legacies and bequests, while the client watches their plan being developed.
While discussing their instructions, you can show the client the different implications of their decisions.
At the meeting, you can give the client a graphic summary of their Will.
Once the meeting is over, you can automatically generate the Will and Powers of Attorney in Word format.
We have found that virtual meeting software, when coupled with Hull e-State Planner, can help make those estate planning meetings much more efficient and effective.
As well, we also understand there has been a financial impact to your practice during this time. In what we hope may help a little, we have decided to waive all Hull e-State Planner fees, for the foreseeable future until things settle down.
We’d be happy to have you join us for a Free Webinar where we will show you how we are using virtual meeting software and Hull e-State Planner together and our thoughts on getting Wills signed up.
The Webinars are:
Click on the date to sign up for the Webinar.
Wishing you and your loved ones good health,
Like many of you, we are struggling to figure out ways to get our clients’ Wills executed during this period of social distancing.
Ontario has very strict rules on how a Will has to be executed in order for it to be valid. Unlike many other Provinces, Ontario does not have “substantial compliance” legislation that allows a Court to validate a Will that has not been duly executed.
These rules cannot be changed except by legislative action. The Succession Law Reform Act would have to be amended. The Law Society of Ontario is not able to give permission to override these requirements.
The key requirements are that:
- The Will-maker must sign or acknowledge his/her signature in the presence of two witness; and
- Both witnesses must sign in the presence of the Will-maker and each other.
The “presence of” requirement is generally regarded as having to be in the same room and be able to see one another signing the Will.
We have almost always resisted sending the Will out to be executed by the client without our presence for fear that it would not be executed properly. However, under the current circumstances, we are adopting a process for our clients who need to have their Wills signed.
Protocol for Remote Execution
Firstly, we explain to the client the strict rules for signing the Will and that the Will won’t be valid unless these rules are followed exactly.
We also remind them of who cannot be a witness:
- A Beneficiary (even a contingent beneficiary);
- The married spouse of a Beneficiary; or
- A person under age 18.
A person who is named as an executor, but not a beneficiary, can be a proper witness.
We’ve created this Client Will Signing Checklist document that we send to the client and ask them to complete during the Will signing and send back to us. Here is a link to the document.
Some firms are asking their clients to video the Will execution process in such a way that all three parties, the Will-maker and the two witnesses are visible. The client can send a copy of the video for the lawyer’s files. Of course, this is not required, but may put you more at ease when you see that they did it correctly.
The Affidavit of Execution can be prepared and sworn after the signing.
Once we are able to interact in person, we are recommending that our clients come in to re-sign their Wills at our office, just to be on the safe side.
Thank you for reading.
When drafting wills, it is common to make gifts to a class of persons rather than naming the specific beneficiaries. This might include a gift to one’s grandchildren or to members of one’s book club. With a class gift, the members of the class may differ between the time of the writing of the will, the death of the testator and following the testator’s death; Some members may leave and new members may join in (for example, the birth of a grandchild). Because of the fact that membership in a class can change over time, the rule of convenience operates to the determine when a class might close so as to give final effect to a class gift.
The rule of convenience dictates when a class closes based on the idea that only persons in existence at the death of the testator are intended to take under the will. This rule will come into effect only where the will does not provide for when the class will close. For example, a will that provides a gift to “all my grandchildren now living” will take effect from the date of execution and only grandchildren in existence on the date of execution will benefit on the basis that the will limited the class to grandchildren alive at the date of execution. Where the will, however, does not provide any guidance as to the closing of the class, the rule of convenience will come into play.
Where a class gift is of a certain amount of money to each member of the class, rather than a share of some specified sum, the class will close immediately on the death of the testator. Thus if the testator provided that each member of the class was to receive $1,000.00, the class will only be comprised of those persons in existence at the time of death. This class would include any children in gestation, but not yet born at the time of the closing.
Where the class gift is such that the members will receive a proportional share of a gift, the rule dictates that generally, if members of the class have come into existence at the time of the testator’s death, then the class closes on the date of the testator’s death. Any new members of the class who join after the date of death would be excluded from receiving any interest.
Certain exceptions exist to this general rule. For example, where a class gift follows a life interest, the class closes at the termination of the life interest. Thus any member alive at the death of the testator or who comes into existence before the death of the life tenant will take under the class gift. Where the will stipulates that the gift is postponed until each member of the class fulfills a certain condition (for example, turning 21 years of age), then the class will close on the date of the first member fulfilling that condition. Thus where the gift is to grandchildren with the gift to be distributed at the age of 21, then any grandchildren born after the death of the testator and before the first grandchild reaches 21 will also join the class.
To learn more about the challenges posthumous conception and the legal definition of “child” may pose with respect to the rule of convenience, see “Posthumous Conception: Recent Changes to the Succession Law Reform Act and their Impact on Estates Law,” a paper presented by Krystyne Rusek of Pallett Valo LLP.
If you’d like to learn more on the distinction between class gifts and gifts to specific entities, see this blog.
Thanks for reading!