Tag: Drafting Wills
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.
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It is not uncommon for a testator to want to make amendments to his or her Will once it has been executed. Typically, the safest way to make changes to a Will is to have a solicitor draw up a Codicil to be added to the executed Will or to make a new Will all together. However, what happens when a testator makes handwritten changes to their original executed Will?
Section 18 of the Succession Law Reform Act (the “SLRA”) governs the validity of alterations made after a Will has been executed. To be valid, the alterations must be accompanied by not only the signature of the testator but also the subscription of at least two witnesses. Alternatively, a testator may make valid alterations to his or her Will if the Will meets the formalities of a holographic Will i.e. it is made wholly in the testator’s own handwriting and is signed by the testator. The statutory requirements for a valid alteration must be strictly adhered to.
In addition to compliance with the SLRA, there are common law requirements with respect to the manner in which the original wording must be deleted. Therefore, it is not advisable for a testator to attempt to make handwritten alterations to their executed Will, without first receiving advice from a solicitor.
While the execution of a new Will or Codicil is the surest way of ensuring that any desired amendments will be honoured upon the testator’s death, it may not always be practical. Accordingly, practitioners may want to review with the testator the appropriate requirements for altering their already executed Will. It is important to remember, however, that issues of testamentary capacity and undue influence are separate issues that ought to be considered as well.
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Undue influence can be difficult to detect. This is because it often occurs behind closed doors. For a prudent solicitor seeking to make sure the Will they are drafting is an accurate reflection of the true intentions of the testator, ascertaining whether undue influence is being exerted can be a real challenge. There are red flags that may alert us to the possibility but, unfortunately, it is difficult to determine with any certainty whether a testator is being coerced.
The solicitor may ask pointed questions and insist on interviewing the testator alone but this will not necessarily guarantee an honest response. This is because those who are subject to undue influence are often older persons whose health is declining. They are frequently heavily dependent on their caregiver who may be intentionally isolating them from others. If this same caregiver has already gone so far as to arrange the meeting with the lawyer and instructed the testator on what the new Will should say, it is also likely that they will want to see a copy once the lawyer leaves.
The unduly influenced testator knows this and as a result, is unlikely to admit that they are being pressured. If they do, the lawyer will not draft the Will and they will be left to deal with the repercussions. This is a dilemma that arises in almost every abusive relationship. Fear of reprisal prevents the abused individual from speaking up.
At the Law Society of Upper Canada’s Practice Gems: The Administration of Estates, held last week, John Poyser presented on this exact issue. In order to safeguard against this problem, he suggests the interesting practice of implementing a confidential replacement Will.
The idea is that when a lawyer suspects the presence of undue influence and the usual preventative tactics fail, a second confidential Will is offered. The lawyer offers to draft and execute a Will according to the instructions the testator has been told to include. Then, another “confidential” Will or Codicil is drafted and executed which revokes or amends the former, as the case may be. The lawyer offers to securely and confidentially arrange to have the second Will held by a trusted friend until after the testator’s death. In this way, the testator can show the individual exerting pressure on them the first Will while ensuring that their true intentions are safely contained elsewhere.
This approach serves dual purposes. It ensures that anyone being unduly influenced has the opportunity to have their final wishes honoured without fear of consequences. It also works as a screening device for situations where undue influence may be present but not admitted to.
As Poyser points out, offering a confidential replacement Will typically results in one of two reactions. One, the testator is shocked that this is even being suggested and they stand by their position. This reaction can reassure the lawyer that undue influence is not an issue. Or, the testator is relieved to have been given this option.
This practice is unconventional and may contain flaws, the most obvious being that the average person being unduly influenced does not have many trusted friends to handle the storage and subsequent production of the confidential Will. However, undue influence is very closely tied to the growing problem of elder abuse and it is undoubtedly an interesting idea that is worthy of further discussion.
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Today on Hull on Estates, Josh Eisen and Jonathon Kappy discuss drafting errors as they relate to primary and secondary wills in the recent court case, McLaughlin v. McLaughlin, 2014 ONSC 3162 (CanLII) . If you have any questions, please email us at email@example.com, or leave a comment on our blog page.
Click here for more information on Josh Eisen.
READ THE TRANSCRIBED PODCAST
During this podcast, we discussed the following:
(i) age restrictions to keep in mind when drafting a will;
(ii) requisite mental capacity; and
(iii) the issue of insane delusions. ——–