Gold’s Legal Minute*
45 + LEGAL MATTERS
The Making of a Will
By Allan Gold, B.A., B.C.L.
When the subject of making a will is raised and discussed amongst family and close friends, it usually evokes negative thoughts of illness and death. But the making of a will does not have to be negative; rather, it should be thought of and construed as a tremendously positive move!
Firstly, a will can quite properly be viewed as a loving instrument. It shows that you have loved ones in your life, and demonstrates that you care enough to provide for them in an appropriate way.
Secondly, a will is an indicator that you are smart and capable of being thoughtful and reasoning through this difficult and emotional issue.
And thirdly, it demonstrates you are independent and believe in “having it your way”. Of course, if you neglect to make a will, your estate will be distributed as per the law (this is explained below).
When you make your will, you are in good company. Wills can be simple one-page documents or complicated multi-page works of epic proportions. Take the English novelist Jane Austen. She had a simple, one-page holograph will that was written in an elegant style. As her will was not witnessed, two friends had to swear in a written statement upon her death in 1817 that they had known Austen for years and that the document was in her handwriting. In fewer than 100 words, she left nearly all her estate, which was valued at under £800 pounds sterling to her “dearest sister” Cassandra who nursed Jane through her last illnesses. William Shakespeare, another famous will-maker, ran his will to three pages. It included several bequests, and he left his “second best bed” to his wife, Anne Hathaway upon his death in 1616. Apparently, it was common practice to leave the “best” things to the children and the “second best” to the wife. *
A little bit of semantics:
The expression “last will and testament” contains three key words. The word last is important insofar as the law renders the latest document as the one that is effective and applicable. The second word is will: in Webster’s New World Dictionary, it is defined as: “(a) the legal statement of a person’s wishes concerning the disposal of his property after death (b) the document containing this…” ** The third word, testament, originated in the ancient law of Rome and means a solemn declaration of a person’s will. Hence, it is a unilateral and revocable juridical act drawn up in a form prescribed by law, by which a person disposes by liberality all or part of his or her property, the same to take effect only after death. This is a person’s final wish forcefully stipulated as his or her formal and conscious instruction(s) to be carried out.
The formalities governing wills are observed on pain of nullity. A will must be in conformity with the law of the place where the testator or testatrix (the person making the will) has his or her domicile at the time of its making. Broadly speaking, a person is domiciled in the country of his or her permanent home. Domicile is distinct from nationality or residence; he or she may be a resident in more than one country at any given time, but he or she can only be domiciled in one country. At birth, a person has what is known as a “domicile of origin”. Normally, this is his or her father’s domicile and not necessarily the country of birth. A person keeps this domicile until acquiring a different domicile, which is a “domicile of choice or of dependence.” To acquire a “domicile of choice,” a person must sever all ties with the country of “domicile of origin” and settle in another country with the clear intention of making his or her permanent home there. Strangely enough, long residence in another country is not in itself enough to acquire a ”domicile of choice”. Rather, there has to be evidence of a firm intention to live there permanently. Nevertheless, if the will contains a bequest of real estate which is outside the province or country of the domicile of the testator or testatrix, then it must conform to the laws of the province or country where the said real estate is situated.
The Terms and Conditions
There are three important conditions in the making of a will. (1) A will is never made jointly (by two people). Rather, a will is a personal, unilateral act made by an individual. (2) A will must be made in writing, dated and signed. (3) A will is revocable until death.
There are many types of wills, but the principal types follow below:
(a) Holograph Will: This type of will owes its name to the Greek words holos and graphe, same meaning “whole” and “writing” respectively. It is the simplest form of will, written without any special wording or formality. This type must be wholly handwritten and signed by the testator or testatrix so as to enable, if need be, the evaluation of the handwriting. It may not be prepared on a typewriter or a computer and does not require witnesses or any witnessing of signatures. Although it is deemed to be the least secure of all wills, most people believe that it is better to have a will of this kind rather than nothing at all.
(b) Will in English Form: This type of will is also known as a “Will Before Witnesses,” and may be typed or produced on a computer. As well, it may be handwritten by someone else or prepared by an attorney. However, this type of will requires that two witnesses attest to its veracity in terms of issues like identity, signature and date. Finally, it must be probated.
(c) In Québec, there is also the notarial form where the will must be sworn to in front of a notary rather than an attorney.
What happens if you don’t make a will?
Testate (ab intestate): If a person dies with a will, he or she is said to have died testate. If a person dies without a will, he or she is said to have died ab intestate, at which time the court will appoint an administrator to dispose of the estate as per the intestacy law of the deceased’s province of domicile. Following the payment of debts, such law will determine how the property is to be divided amongst the legal heirs (e.g., a spouse, children and close relatives). Thus, by not making a will, a person forfeits the right to specify his or her preferred heirs.
The following chart is a primary cross-Canada outline illustrating the distribution of an estate in each province. Because the system differs in Québec, details for that province are set forth following the chart below.
|Province||Spouse Only||Spouse and One Child||Spouse and More Than One Child||Children Only|
|Alberta||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to Children|
|British Columbia||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Manitoba||All to spouse||All to spouse||All to spouse||All to children|
|New Brunswick||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Newfoundland||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Northwest Territorities||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Nova Scotia||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Nunavut||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Ontario||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Prince Edward Island
|All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Saskatchewan||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
|Yukon||All to spouse||Split equally||1/3 to spouse and 2/3 to children||All to children|
In Québec, the Civil Code (L.R.Q., c. 64) governs successions and specifies the disposition of inheritances. Where there is no will (intestate), the surviving spouse inherits one-half of the net value of the family patrimony in addition to that belonging to him or her from the matrimonial regime. The remainder of the succession is divided according to the following rules:
(a) If the deceased has a spouse and children, the legal share of the surviving spouse is one-third and that of the children is the remaining two-thirds.
(b) If the deceased has no children, but leaves a spouse and ascendants (father and mother), the legal share of the surviving spouse is two-thirds and that of the father and mother is one-third; brothers and sisters, if there are any, do not inherit.
(c) If the deceased has no children and his or her father and mother are deceased but he or she leaves a spouse and privileged collaterals, (e.g., brothers and sisters or the children of a brother or sister who is deceased), then the legal share of the surviving spouse is two-thirds and that of the privileged collaterals is one-third.
(d) If the deceased leaves no spouse, his or her entire succession is left to his or her descendants; but if the deceased leaves no spouse or descendants, his or her property devolves to his or her father and mother, brothers and sisters or to more distant relatives, ascendants or collaterals, as the case may be. No one may legally succeed to a person beyond the eighth degree, after which the State (provincial government) takes the property of the succession and the Public Curator becomes the liquidator.
(e) The law in Québec does not consider de facto spouses and in-laws (brother-in-law, sister-in-law, son-in-law, and daughter-in-law) as legal heirs. They cannot inherit unless the testator or testatrix so states it in his or her will.
If you do not want the State to designate or elect the person or persons to receive your estate and/or prorate your estate for distribution after your death, make a will; it’s that simple. Remember, there are two principal types of wills: one that you handwrite in full, date and sign, and one computer generated along with affidavits by witnesses. Whichever one you decide to do, you are advised to do it today.
Please be advised: This article is for informational purposes only. For advice on an individual basis, we recommend that you communicate with an attorney in your locale.
* To verify these historical figures, visit Britain’s National Archives at Web site:www.nationalarchives.gov.uk
** Guralnik, David B., (Editor in Chief), Webster’s New World Dictionary, Second College Edition, William Collins + World Publishing Co. Inc., U.S.A., 1978.
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