Tag: Privileged Will
NASA revealed exciting news earlier this week when they announced the discovery of liquid water flowing on the surface of Mars. The presence of water is an encouraging find. It boosts the prospects of discovering life on our nearest neighbour, and it raises questions about whether the planet could someday host human visitors.
The goal of sending people to the Martian surface now seems more attainable than ever. Talk of sending astronauts to Mars is likely to accelerate over the coming months. With people travelling to and someday settling on the red planet, a whole host of legal issues are likely to arise about how people will live on Mars, and some day, how we will deal with death in space.
The problem of applying testamentary law in space is a novel one. Perhaps the closest historical analog is the example of the explorers who set sail centuries ago in search of strange, new places across the seas. One of the legal developments that arose was the exception for privileged wills. Sailors at sea were allowed to make wills without them being subject to the same formal requirements that governed other wills.
Today, section 5 of Ontario’s Succession Law Reform Act addresses the formal validity of wills made by “a sailor when at sea or in the course of a voyage”. The section provides for a relaxation of the usual requirements for a will to be formally valid, including the requirement for two witnesses in the case of an attested will and the requirement that the will be wholly in the handwriting of the testator in the case of a holograph will. It provides that a sailor at sea can make a will by a writing, signed by the testator or by some other person in his or her presence and by his or her direction, without any other formalities. The section also applies to members of the Canadian Forces on active service and members of any other naval, land or air force while on active service.
There are no cases testing whether this provision or analogous provisions in other jurisdictions (on Earth) would apply to relax the formal requirements for a will where it is made during a space flight or while residing on Mars. It’s possible that astronauts in flight could be considered to be analogous to sailors at sea. It’s also possible that NASA astronauts would be members of a military force on active service, and accordingly gain access to the use of privileged wills.
It seems that it will be still be some time before we will need to consider the problems associated with living on Mars, and hopefully much longer before issues associated with death on Mars need to be sorted out. Perhaps need will spur new and unforeseen innovations in our legal system, just as naval exploration once did.
Mars is probably a forced heirship planet, anyway.
Language is the primary tool of a lawyer’s trade. Although there has been movement in modern times toward “plain language”, history steeped in tradition demands that we maintain our own dictionary. Building on Wednesday’s theme of unusual legal terms, here are some you don’t hear every day.
Aliquot: Sounds like an exotic fruit but is actually a definite fractional share, usually applied when dividing and distributing a dead person’s estate or trust assets.
Dynasty Trust: No, it is not a sequel to the 80’s TV series. It is a trust designed to pass down assets to U.S. beneficiaries for many generations in a manner that avoids U.S. transfer tax. For more general information see this Globe and Mail article.
Emphyteusis: If you guessed a medical condition, deduct 2 points. This is a right subject to assignment and descent, charged on productive real estate. The person who has this right can enjoy the property on the condition of taking care of the estate or paying taxes or rent annually.
Hotchpot: This one has nothing to do with cooking. It is the blending and mixing of property belonging to different persons in order to divide it equally. For more on hotchpot clauses, see this article by Corina Weigl.
Parricide: An act of killing one’s father, a family member or close relative. Not recommended as a method to hasten one’s inheritance.
Privileged Will: An informal will made by a soldier or a sailor, valid in spite of defect of form. Can be signed by, or on behalf and in the presence of, the soldier or sailor. No witness necessary. I’ll bet Captain High Liner has one of these. For more, see Rodney Hull & Ian Hull, “Probate Practice” 4th ed. (Toronto: Thomson Canada Limited, 1996) p. 74; Succession Law Reform Act, s. 5
Scrivener’s Error: An error made by clerical staff in a legal document. This term is mainly used to save higher officials from the blame of committing a mistake by putting the blame on clerical staff instead. This one is just plain clever!
Usufruct: Not a sugar alternative but a sweet deal for the person who holds it. The right to use and enjoy the property of another for a stipulated time period or for life. No need to share with the real owner but you cannot alter, destroy or dispose of the property.
For definitions of these and other terms check out the law.com online legal dictionary.
Have a great weekend!
Sharon Davis – Click here for more information on Sharon Davis.