Tag: last will and testament
People can become upset when they find out that they have been written out of a Will. This frustration can often become multiplied when the individual in question received a significant bequest under a prior Will, believing the that the prior Will in which they received a more significant interest should govern the administration of the estate. In looking for recourse or answers, the “disappointed beneficiary” can often lash out against the drafting lawyer who was retained to prepare the new Will, believing that it was somehow improper or negligent for them to have prepared the Will, and that they have suffered damages in the form of the lost bequest. Some “disappointed beneficiaries” will even go as far as to commence a claim against the drafting lawyer for having seen to drafting the new Will. But can such claims be successful?
In order for the “disappointed beneficiary” to successfully have a claim against the drafting lawyer, the court must find that the drafting lawyer owed a “duty of care” to the beneficiaries under the prior Will. Generally speaking, the only individual to whom a drafting lawyer owes a duty of care when seeing to the preparation of a Will is the testator (and the beneficiaries listed in the new Will by extension). Although the court will sometimes in limited circumstances extend a duty of care to “disappointed beneficiaries”, such circumstances typically exist when the testator advised the drafting lawyer of an intention to benefit a certain individual, however as a result of the actions of the drafting lawyer such an individual did not end up receiving the intended bequest (see White v. Jones and Hall v. Bennett Estate). Such circumstances appear notably distinct from bequests to beneficiaries under a prior Will, for by creating a new Will the testator is in effect communicating to the drafting lawyer an intention to no longer benefit the individuals under the prior Will.
The Alberta Court of Appeal in Graham v. Bonnycastle succinctly summarizes why the court is typically not willing to extend a duty of care from the drafting lawyer to the beneficiaries listed in a prior Will, stating:
“There are strong public policy reasons why the solicitors’ duty should not be extended. The imposition of a duty to beneficiaries under a previous will would create inevitable conflicts of interest. A solicitor cannot have a duty to follow the instructions of his client to prepare a new will and, at the same time, have a duty to beneficiaries under previous wills whose interests are likely to be affected by the new will. The interests of a beneficiary under a previous will are inevitably in conflict with the interests of the testator who wishes to change the will by revoking or reducing a bequest to that beneficiary…” [emphasis added]
In noting that there are other avenues available to such “disappointed beneficiaries”, including challenging the validity of the new Will, the court in Graham v. Bonnycastle goes on to state:
“As noted above, several decisions have recognized the untenable situation that would be created by extending solicitors’ duty of care to include beneficiaries under a former will. Beneficiaries under a former will have other remedies available to them, and may block probate of the will where testamentary capacity is not established. The estate also has a remedy available where it suffers a loss as a result of solicitor negligence. There is no justification for imposing a duty on solicitors taking instruction from a testator for a new will to protect the interests of beneficiaries under a former will. There is not a sufficient relationship of proximity and there are strong policy reasons for refusing to recognize the existence of a duty. It is not fair, just and reasonable to impose a duty.” [emphasis added]
As cases such as Graham v. Bonnycastle suggest, the court appears unwilling to extend a duty of care from the drafting lawyer to a beneficiary listed under a prior Will. If no duty of care exists, no claim may now be advanced by the disappointed beneficiary against the drafting lawyer for any perceived “damages” they may have suffered on account of the new Will having been drafted. This appears true even if it is ultimately found that the testator lacked testamentary capacity at the time the new Will was signed.
Thank you for reading.
People change their mind all of the time. When someone changes their mind about the terms of their Will however, things can become more complicated. Going to a lawyer to formally make a change to the Will may seem daunting. If the change to the Will is relatively minor, an individual may be tempted to forgo meeting with a lawyer to draw up a new Will or Codicil, and simply make the change to the Will themselves by crossing out or inserting new language by hand on the face of the old Will. But would such handwritten changes be valid?
Although the advice to any individual thinking of changing their Will would always be to speak with a lawyer about the matter, people do not always adhere to such advice. If someone has made handwritten changes to their Will after the document was originally signed, such changes can under certain circumstances alter the terms of the Will.
Section 18(1) of the Succession Law Reform Act (the “SLRA“) provides that unless any alteration to a Will is made in accordance with the requirements of section 18(2) of the SLRA, such alterations have no effect upon the provisions of the Will itself unless such an alteration has had the effect that you can no longer read the original wording of the Will. Section 18(2) of the SLRA further provides:
“An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,
(a) in the margin or in some other part of the will opposite or near to the alteration; or
(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.”
As a result of section 18(1) and 18(2) of the SLRA, any handwritten change to a Will does not validly alter the terms of the Will unless the testator and two witnesses sign in the margins of the Will near the alteration (subject to certain exceptions listed). If the handwritten change is not accompanied by such signatures it is not a valid alteration and has no impact upon the original terms of the Will, unless the handwritten change has had the effect of “obliterating” the original language of the Will by making it no longer readable.
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For all that is known about chef Anthony Bourdain’s colourful lifestyle, the estate plan he left behind is surprisingly comprehensive.
Bourdain’s Will leaves the residue of his estate to his minor daughter, Ariane. The residue has been valued at approximately $1.2 million, and consists of savings, cash, brokerage accounts, personal property, and intangible property including royalties and residuals. In the event that Bourdain survived his daughter, the residue was to pass to his daughter’s nanny.
Bourdain appointed his estranged wife as estate trustee. This makes sense given that Ariane is the daughter of the marriage and that the mother will likely have her daughter’s best interests in mind while the estate is administered. Bourdain was also mindful to include in his Will other assets – personal and household effects, including frequent flyer miles. Given the amount of travelling Bourdain did, it was shrewd of him to specifically include this in his Will.
A separate trust was also settled, apparently containing most of his wealth. Again, his estranged wife is named as trustee, with Ariane as beneficiary receiving money from the trust when she turns 25, 30, and 35. Presumably, Bourdain settled a trust to avoid the payment of taxes and the publicity associated with probate – another sign of a well thought out estate plan.
While so many celebrities succumb to poor estate planning, it is refreshing that in addition to teaching us about cooking, travelling, eating, and so much more, Bourdain also taught us about the importance of a thorough estate plan.
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The general rule, one that most people are probably familiar with when they think of a Will, is that the testator has to have the requisite capacity in order to be able to execute it. But what does that mean?
Generally, it means that a person should be of sound mind and understanding and have sufficient capacity to appreciate the various dispositions of property that would be put into effect with his or her execution of the Will. In other words, the testator must:
(1) understand that they are giving their property to one or more objects of his or her regard;
(2) have the capacity to comprehend the extent of their property and the nature of the claims of others to whom they are giving nothing under the Will.
In the case of a deceased who committed suicide, a question that may arise is whether a person who is about to commit suicide has the appropriate testamentary capacity to be able to execute a Will?
In that regard, it is important to remember that the onus is on the person who is propounding the Will – in other words applying to the court for an order that the Will is valid. In the usual course, there is certainly no presumption against the testamentary capacity of a testator. Indeed, it is quite the opposite. However, in cases where a proposition is made that a death (suicide) note is the last valid will and testament of a testator, it is more likely that someone may object. That is especially the case where an expected beneficiary is disinherited under such a circumstance.
As soon as capacity is called into question, the onus lies on the party propounding the Will to affirm testamentary capacity.
Suicide, in itself, does not equate to testamentary incapacity – although it is a circumstance that may be considered. In fact, a testator may have testamentary capacity even if they are not of entirely sound mind. That means that prior to committing suicide, a person can very well have testamentary capacity. If that is the case, then a death note can be considered a Holograph Will, which in Ontario, in accordance with section 6 of the Succession Law Reform Act, has the following requirements in order to be valid:
(1) It must be entirely in the testator’s hand writing; and
(2) It must be signed by the testator.
There is no requirement for witnesses in the case of a Holograph Will and it must be that the testator intended to dispose of their property after death.
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I recently came across an interesting article, found here, which highlights the fascinating story of Jane Haining, a Christian missionary from south Scotland, whose Last Will and Testament was recently unearthed in church archives in Scotland.
Despite requests to return home to native Scotland, Haining remained in Budapest during the height of World War II where she worked as a matron at a church-run school that provided safety to orphaned Jewish schoolchildren. She refused to leave Budapest stating that “if these children needed me in days of sunshine, how much more do they need me in these days of darkness?”
As Hungary’s Nationalist government acceded to the anti-Semitic laws imposed by Hitler’s regime, Haining was arrested by the Gestapo on suspicion of “espionage on behalf of England” and working among Jews.
Haining was eventually sent to Auschwitz where she died of “cachexia following intestinal catarrh”.
As a result of the care Haining provided to her students and the safety she provided, Haining is often referred to as Scotland’s Schindler.
Found within a box in the attic of the Church of Scotland World Mission Council’s archives in Edinburgh, Haining’s handwritten Last Will was dated July 1942 and read on its face that it should only be opened upon her death. The Last Will bequeaths, amongst other things, her typewriter, fur coat and watches.
Although the Last Will itself is nothing unusual, there is much excitement surrounding its discovery as historians suggest that it gives a sense that Haining was fully aware of the risks she was taking to protect the Jewish schoolchildren.
I recently came across an interesting article, found here, pertaining to the creation of the Nobel Prize. As a result of a Will challenge, such a prestigious award almost never came to be.
The famed Swedish chemist, Alfred Nobel, is best known for inventing dynamite, as well as creating the ‘Nobel Prize‘ which awards annual prizes for outstanding work in the fields of physics, chemistry, physiology or medicine, literature, economics (as of 1969), and the promotion of peace. Nobel passed away without children on December 10, 1896 in San Remo, Italy, leaving a Will dated November 27, 1985.
Nobel executed his Will while in Paris (allegedly, without consulting a lawyer), with the majority of his wealth set aside for the establishment of a prize. Specifically, the Will required that after certain specific bequests, Nobel’s entire remaining estate was to be used to endow:
“…prizes to those who, during the preceding year, shall have conferred the greatest benefit to mankind. The said interest shall be divided into five equal parts, which shall be apportioned as follows: one part to the person who shall have made the most important discovery or invention within the field of physics; one part to the person who shall have made the most important chemical discovery or improvement; one part to the person who shall have made the most important discovery within the domain of physiology or medicine; one part to the person who shall have produced in the field of literature the most outstanding work in an ideal direction; and one part to the person who shall have done the most or the best work for fraternity between nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses“.
The Will also stated the location of where the prizes were to be awarded, as well as the institutions who would be responsible for assigning these prizes.
Apparently, not only was the Will challenged by two nephews who sought to have the Will set aside (grounds unknown), but the creation of the Nobel Prize was met with disapproval by King Oscar II of Sweden on the basis that Nobel’s wishes were unpatriotic, and bypassed Sweden’s interests. Interestingly, the peace prize was to be awarded by the Norwegian Parliament at a time when friction between Norway and Sweden were at an all-time high. Further, the various institutions had not been consulted to ensure they were prepared to take on such a prominent role in assigning the prizes.
Notwithstanding this, the first Nobel Prize was awarded on December 10, 1901 in Stockholm and Oslo, with such prizes continuing to be awarded. Please see Jennifer Hartman’s blog, here, which further explored this interesting issue.
When applying for a Certificate of Appointment of Estate Trustee with a Will, the applicant must be certain that the Will annexed is the Last Will and Testament of the Deceased. Ideally, the testator will have discussed the location of their Last Will with a trusted family member, friend or professional and it will be easily located at the appropriate time.
If this is not the case, there are a number of places to begin your search for a Last Will, as discussed by Sean Lawler in his article “Wills Kept by the Law Society of Upper Canada” in the most recent issue of Deadbeat, a publication of the Trusts and Estates Law Section of the Ontario Bar Association.
Some of the places Wills are often kept include the following:
- The drafting lawyer’s Wills vault.
- Among the Deceased’s possessions.
- In a safety deposit box.
- With the Executor.
- With an attorney for property or for personal care.
- On file with the Superior Court of Justice pursuant to Section 2 of the Estates Act, which establishes a Wills depository administered by local Court offices.
If you are unsuccessful locating a Will as above, you can place an ad with the Ontario Reports or other publication to determine if another lawyer who acted for the Deceased, or any other person, is in possession of a Last Will.
One other place to look is the Law Society of Upper Canada (“LSUC”). The files of many lawyers who die, retire, or are disbarred are transferred to LSUC’s Trustee Services Department. Most files are now stored electronically.
LSUC keeps over 45,000 Wills, a number that increases by approximately 3,000 per year. The Wills register can be searched by the name of the lawyer or by the name of the Testator.
The key takeaway here is that estate planning should not be a secret. Discuss your Will with your family (contents and location) and make it easy on loved ones when the time comes to probate your Will.
Sharon Davis – Click here for more information on Sharon Davis.
Off with the cufflinks. Roll up your sleeves. Grab your joystick and get ready for what may be the ultimate way for the estates and trusts practitioner to spend their lunch hour: Nintendo DS Safecracker.
As an expert safecracker, you have been hired by the wealthy family of a recently deceased billionaire in order to search for the Last Will and Testament of their late relative, oil tycoon Duncan W. Adams. Adams, both an avid safe collector and an eccentric recluse, has hidden the deed to his riches in one of the 35 safes scattered in his lavish 40-room, 3-storey mansion.
Of course, what last testament tale wouldn’t include a nod to the complexities of family dynamics? In addition to his Last Will, Adams has strewn around the mansion various snippets of information about himself and his descendants: letters, notes, postcards and even a diary, all of which allude to the inner workings of the family.
Jennifer Hartman, Guest Blogger