In early April I attended the The Six-Minute Estates Lawyer 2007, a seminar conducted by the Law Society of Upper Canada.
Ann Lalonde, Senior Counsel for the Office of The Children’s Lawyer gave an interesting presentation on Will drafting errors that her office commonly sees. While the paper she presented included 11 errors, I’ll focus on her top five:
1. No residue clause or residue given away multiple time
- The testator makes three bequests of $25,000.00, says nothing else in the Will, then dies with an estate worth $100,000.00
2. The Will requires an asset to be held without considering the consequences that may result
- The testator dies leaving an estate that consists mainly of shares in a major bank. The Will says that the trustees should “hold the shares”, but gives no further direction.
3. The Will contains a gift to a class, but does not include a certain closing date
- The testator leaves a gift to his grandchildren which is distributable when “the youngest grandchild attains the age of 25 years.”
4. Failure to account for future adoptions or non-adoptions
- The testator leaves a gift to his children. At the time of death he has step-children that he has always treated as his own, but never adopted.
5. Staggered distributions with no gifts over
- The testator provides for a legacy to his grandchildren with a staggered distribution at ages 18 and 21. There is no provision for what happens if the grandchild doesn’t reach age 21.
From a practice standpoint, it is important for the lawyer to discuss gifts that are being made in detail and to ensure the client understands the implications of the Will that has been drafted. It is also essential for the lawyer to proof-read her work and ensure that any disputes that result after death are not because of avoidable mistakes.
Have a great day!
Today, Rodney Hull Q.C. gives us some practical advice on dealing with actual interpretation problems …
(1) THE RULE IN BROWNE v. MOODY,  A.C. 635 (P.C). – Direction to pay after a life interest – vesting of interest.
(2) THE CLAUSE – “Income from a trust to a son for life, and on son’s death, the fund to be divided among the daughters and granddaughter of the testatrix in equal shares, with gift over in the event that any of the daughters and the granddaughter predecease the testatrix or the son leaving issue, such issue to take the interest to which the person so dying would have been entitled had she survived the testatrix.”
(3) THE FACTS – The testatrix left a son, three daughters and one granddaughter.
(4) THE QUESTION – What interest do the beneficiaries take and when does the interest arise?
(i) On the death of the testatrix?
(ii) At the date of the Will? or
(iii) At some other time?
(5) WHERE TO START RESEARCH –
(i) Theobald on Wills – page 602 – paragraphs 43 – 26.
(ii) Feeney’s Canadian Law of Wills – paragraphs 17.8 – 17.47.
(iii) Sheard, Hull and Fitzpatrick, Canadian Forms of Wills, page 221.
Although Will provisions can be quite unique, assistance often can be sought from similar provisions in other documents. A review of the case law can therefore be of assistance as well.
We’ll deal with another such provision tomorrow.
All the best – Suzana.