Wills, and Estate Planning Flashcards
Discuss and provide examples of the following, class gift vs. residuary gift. Describe the main differences.
Class Gift: a gift to a group made of individuals who share some type of common characteristic rather than to a specific individual.
Eg. To my children (commonality: siblings, and all children)
Residuary Gift: After payment of debts, testamentary expenses and legacies, what remains in the estate is called the residue. The gift of residue is then this remains.
Eg. After paying all the gifts and paying the mortgages etc. The rest is given to Jason.
The main difference is that the class gift is to a group of people and could be a specific gift, like a sum of money stated in the will or could be the residue. The residue is always the remainder after all gifts/debts are paid out.
Discuss and provide examples of a holograph will and a living will. Discuss any key differences between the concepts.
Holograph Will: is a will that is signed by a will maker but is not witnessed.
This type of will is recognized in BC only if it is recognized in the place in which the will maker made it. For example: this type of will is valid in Saskatchewan thus if the will maker is from Saskatchewan and make the will there then it will be valid in BC.
A Living Will: is a representation agreement or a advance directive which outlines to the representative or health care provider the type of care the adult wants or instructions regarding end of life.
What is the difference between a testamentary trust and a Inter vivos trust?
Testamentary Trust:
A) Created expressly by the will maker
B) a trust or estate that is created when one dies, and only deals with assets after death
C) the trust is created through the will and the will establishes the terms of the trust. The trust can also be determined by the courts in relations to the deceased individual’s estate.
***(A trust created by last Will and Testament as contrary to a trust deed. A testamentary trust commences from the death of the testator. It can be revoked at any time prior to death)
Intervivos Trust:
A) Created expressly, by implication or by law
B) trust is created when a person is alive and can be transferred while the settlor is alive
C) Must be 19 or order to set it up
D) When the assets are transferred into the trust, the actual person on title is the trustee or executor
***(a person disposes of his or her property during her lifetime by setting up an intervivos trust, transferring legal ownership (title) to a trustee, but retaining the beneficial interest.)
–> Must be alive at the time, to say one can hold property at the same time but not have an beneficial interest until the other party dies.
What are the necessary ELEMENTS of a Will?
There are 3 necessary elements of a Will:
1) It has to be clear from the doc. that what is being written is being intended TO DISPOSE of PROPERTY
2) Has to be clear(in writing) that it is not a gift precedent on something other than DEATH.
3) Wills are REVOKABLE until death.
What are the different types of Wills?
There are 4 different types of Wills
1) Attested Will: written and witnessed, what we have in BC right now.
2) Holograph Will: signed by a will maker but not witnessed
3) Privileged Will: Done by a Military person
4) International Will: (new type of Will, recognized by WESA not present in BC)
- This is a will that is recognized by a number of different countries.
What are the requirements of a VALID Will?
4 Requirements of a Valid Will
1) Formal Validity: written, signed by a Will maker and the signature has to be witnessed by two individuals.
*** the witness or the witnesses spouse cannot be given a gift in the Will or the gift will lapse.
S. 39 of WESA
2) Capacity: must be 16 to make a Will and be mentally capable.
S. 36 of WESA & Banks v. Goodfellow test
3) Knowledge and Approval of Contents of the Will - will maker understanding of their assets
4) Undue Influence- make sure that undue influence was not present, that there wasn’t any pressure to make the will, or give a gift to anyone.
S. 52 of WESA
Define Spouse according the WESA.
According to Section 2 of WESA:
2 persons are spouses of each other for the purpose of this Act if they were both alive before a relevant time and
a) married to each other or,
b) they had lived in a marriage-like relationship for at least 2 years.
A marriage like relationship can be determined through case law. Janus v. Lachocki by looking at these factors:
1) Co-habitation, living together
2) What are the emotional links? ie. lifelong commitment, moral support
3) Financial Links, income dependance
4) Intention of the individuals: is it to have a good time
5) Degree of Intimacy: sexual/emotional
6) How do they present themselves to others
7) Exclusivity in the relationship
8) Indications surrounding their children
9) Permanent- 2 years(long-term relationship)
Explain the 5 day rule in WESA.
Five Day Survivorship Rule, WESA, sec. 10:
10(1) A person who does not survive a deceased person by 5 days, or a longer period provided in an instrument, is conclusively deemed to have died before the deceased person for all purposes affecting the estate of the deceased person or property of which the deceased person was competent to give by will or another.
(2) If 2 or more persons hold property as joint tenants, or hold a Joint account, and
(a) in the case of 2 persons, it cannot be established that one of them survived the other by 5 days,
(i) one half of the property passes as if they are tenants in common by will or testacy rules
What is Formal Validity of a Will?
There are some formalities that you need to observe in order to create a will, these may vary the type of will you create.
s. 37 of WESA - That the will is in writing, signed by the will maker, and the witnesses.
S. 38- Military forces, wills can be made at age 16
S.39 of WESA- The placement of the signatures has to be at the end.
S. 40- Witnesses to a Will have to be 19.
Fiduciary Duties of Trustees, Executors and Attorney’s
FLP:
Fair, Loyal, Prudent
What revokes a Will?
Under section 55 of WESA
A will can be revoked…
1) A new will is made
2) Written declaration
3) Will maker destroys the Will
4) Court states it is revoked under section 58
(Section 58 is if the will was made incorrectly, and not in accordance to the will makers wishes)
