Learn to write a Will at LegalWills.ca
An increasing number of Canadians are turning to services like the one at LegalWills.ca to write a Will. But every day we received requests from our customers to clarify a term, or clause in their Will. Usually this request comes with an apology for their lack of understanding, and every time we have to give the reassurances that;
- Although writing a Will is extremely important, it is not something that most of us do more than once of twice in a lifetime, so there is no reason to expect anybody to understand these terms.
- A Will is such an important document, but the legal profession intentionally tries to make the document more complicated that it needs to be by using arcane language. There is absolutely no reason for a Will to say, “I give, bequeath and devise” when a simple “I give” would work. Or to say, “I nominate, constitute and appoint” when a simple “I appoint” would mean the same thing. But using arcane language is a way of pushing people into using the services of a legal professional because it seems beyond the capabilities of the layperson.
- Nobody should be required to learn all of these terms in order to write a Will, and there are no clear concise guides that we could find.
Having said that, our Wills still use a lot of legal language, because the document is based on “legal precedents”. This means that these clauses have been used countless times previously and are known to work. If everybody’s Will was made up of creative prose, then the interpretation of each Will would be unmanageable.
This is why lawyers do not write a Will starting with a blank sheet of paper. They too use established legal clauses (the same ones that we use). These clauses are difficult to understand, but we know that they work. The clauses are impenetrable to the layperson, but well understood and recognized by the legal community.
So let us get into the interpretation of your document,
Some key definitions
Last Will and Testament (Will)
Your Last Will and Testament comes into effect once you have died. It does absolutely nothing while you are alive, and you can update it throughout your lifetime. It serves three main purposes.
- It allows you to make key appointments, for example, your Executor and Guardians for your children
- It describes the distribution of your things (your “estate”) which can be money, possessions or real estate. You can leave these to people or to organizations. So your Will may for example include charitable bequests.
- It outlines the powers that you are granting to your Executor to fulfill their duties as your estate administrator.
Everybody needs to write a Will. If you don’t have one, the courts will appoint an Executor and a Guardian for your children. Everything that you own will likely be sold and divided according to the Provincial laws. The whole process will likely take much longer.
Revocation of a Will (Revoke)
The “revocation” clause is simply the cancelling of any previous Wills. To “revoke” is the same as to “cancel”. Ideally you should destroy any old copies of Wills, but each time you write a Will it revokes all previous ones if it includes the revocation clause.
Codicil for a Will
Codicils used to be written to save the time and effort of re-typing a Will. They are attached to the Will and say things like “for clause 2 (b) instead of $10,000 it should read $15,000”
In today’s age of computers and printers they don’t really serve any purpose, but they can add to the complexity of your Will. Codicils aren’t really a shortcut because they must still be signed in the presence of two witnesses.
Thankfully with services like ours, you can just create a new Will every time you need to make a change and codicils will become historical artefacts.
Executor/Estate Trustee/Trustee/Estate Administrator
This is a very confusing term because it is essentially the same person performing different tasks. You appoint an Executor when you write a Will, this is the person who has the responsibility to carry out the instructions in your Will and distribute your estate to your beneficiaries. The first thing they have to do is gather up your assets, at which time they will look after them for you. You are therefore giving your estate to your Executor in “trust” and they become your estate “Trustee”. The Trustee (the Executor) then distributes everything as they are working as your estate administrator.
What is my Estate?
Your estate is everything that you own, not just real estate. It includes money, investments, possessions, real estate, even money that is owed to you. Every asset that can be gathered up becomes your estate from your shoes, to your cottage.
What is the Residue/Residual estate?
Once your Executor has gathered up your estate, they start the process of distributing it according to your instructions. The first things to be paid out are your debts, taxes and funeral expenses, and then any specific gifts that you have included in your Will. Everything else becomes your “residual estate”. This also includes any specific gifts that cannot go to their intended beneficiary, so for example, if you have left $5,000 to your niece, but sadly, she died before you. If you did not name an alternate beneficiary for that $5,000, then it will fall into the residual estate.
Often the residual beneficiary is your main beneficiary.
A Beneficiary is any person or organization that will be “benefitting” from your Will. If you have left $1,000 to your local church, the church is a beneficiary. If you have left your watch to your nephew, then your nephew is a beneficiary. If everything else is going to your spouse, then your spouse is your “residual beneficiary”.
When you leave something in your Will to a Beneficiary, you are leaving them a bequest. In the UK there is a distinction between a possession and a monetary “legacy” but they are essentially the same thing. Your inheritance is the bequest that you receive because you were named as the beneficiary in a Will.
Per Stirpes/Per Capita
There are two different ways of distributing your estate to your grandchildren. Supposing you have two children Jane and Joe. Jane has 4 children, Joe has one child. You are leaving your estate half each to Jane and Joe, but sadly they both die before you, so instead everything will be divided between your grandchildren. If the estate is divided “per stirpes” or “by branch” then Jane’s 4 children will share half, and Joe’s child will get the other half (they each share their parent’s share). If the estate is divided “per capita” or “by head” each grandchild will receive one fifth of the estate.
Any child who has not reached the age of majority. The age of majority is 18 in six provinces: Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan. The age of majority is 19 in four provinces and the three territories: British Columbia, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, and Yukon.
A Trust is when as asset is owned by one person (the beneficiary), but controlled by another person (the trustee). When you write a Will there are various types of trust created. The Will itself creates a trust by having the Executor gather up the assets on behalf of the beneficiaries.
Our Wills allow you to create a “lifetime interest” trust. So for example, if your spouse is not the biological parent of your children, you may want to allow your spouse to live in your home for the rest of their life, but once they die, it goes to your children. You are therefore giving the house to your children, but it is going to remain in trust, so they cannot do anything with it until your spouse has passed away.
We also allow you to set up trusts for Minors. In Canada, you cannot leave an inheritance to a young child. You name the young child as the beneficiary but the inheritance is managed on their behalf by the Trustee until they are old enough to take control of it directly.
If something were to happen to both of a child’s parents a judge at the family courts will appoint a guardian. Hopefully people will come forward and offer themselves as the guardian and the judge will grant guardianship to the person or family that he/she considers to be the most appropriate. As a parent, the stated appointment in your Last Will and Testament would be the over-riding factor in making that appointment, together with any appointment made in the child’s other parent’s Will. If your appointee were still willing and able to serve as the guardian, then the judge would most likely grant guardianship to this person.
If you do not name a Guardian in your Will, the judge will make the best appointment given the information that they have. They may look at things like income levels, location, family stability. Your Will allows you to take into account other things like values, family dynamics, religious or spiritual beliefs, and your own personal preference.
An overview of the clauses in the Last Will and Testament
I HEREBY REVOKE all former wills, codicils and other testamentary dispositions made by me.
You can only have one Last Will and Testament. It is your most recent, your “Last” one. Any time you prepare a Will and sign and date it, every previous Will, or codicil (amendment to a Will) is automatically cancelled. If you have previously written a Will with a lawyer and they have it in their files, it will be automatically cancelled when you sign and date your new one. It’s a good idea to destroy old Wills, you don’t want a number of different versions of your Will lying around. But if there were different versions, only your most recent document counts. The rest are “revoked” or cancelled.
I NOMINATE, CONSTITUTE and APPOINT my Brother, James Smith, of Ottawa, Ontario, and my Uncle, James Brown, of Calgary, Alberta, to be the Estate Trustees, Executors, and Trustees of this my Will, provided that there should be at all times two (2) Estate Trustees, Executors and Trustees of this my Will so that in the event that any one or more of my above-named Estate Trustees, Executors and Trustees shall have pre-deceased me or shall survive me but die before the trusts hereof shall have terminated or shall be unable or unwilling to act or to continue to act, I appoint, in the following order of priority, such one of the persons hereinafter named as shall not already be acting and as shall be able and willing to act to fill the vacancy so created, namely, my Cousin, Bob Jones, of Toronto. References to “my Trustee” in this my Will shall include each Estate Trustee, Executor and Trustee of my Will, my estate or any portion thereof who may be acting as such from time to time whether original or substituted and whether one or more.
In this paragraph you are naming the person or people to serve as your Executor. In this particular clause, two joint Executors have been named. And the Will states that there will always be two Executors. The two will work together, but if one was unavailable or unwilling to serve, then the replacement will step in. You can name up to three alternates who will step into the position in the order that they have been named. Generally, we recommend that only one first choice Executor is named but you can name up to three joint Executors who will have to work together to sort out the estate.
3. PROPERTY TO TRUSTEE
I GIVE, DEVISE, AND BEQUEATH all of my property of every nature and kind and wheresoever situate, including property over which I may have a general power of appointment, to my Trustee upon the following trusts, namely:
This clause trips up a lot of people. The Trustee is not a beneficiary in the Will (they can be, but they do not have to be), so why is the Will giving everything to the Trustee? The key with the Will is that you always have to read every sentence to the end.
After you have died, the Executor has to gather up your entire estate. They will then hold onto everything in order to follow the instructions in the Will. So your entire estate will be held by your Trustee (Executor) for safe keeping, and will then be distributed according to your instructions.
Debts, Expenses and Taxes
To pay out of my general estate my debts, funeral and testamentary expenses.
To pay out of my general estate all income taxes, estate, inheritance and succession duties or taxes whether imposed by or pursuant to the law of this or any other jurisdiction whatsoever that may be payable in connection with any property passing on my death or in connection with any insurance on my life or any gift or benefit given or conferred by me either during my lifetime or by survivorship or by this my Will or any codicil hereto and whether such duties or taxes be payable in respect of estates or interests which fall into possession at my death or at any subsequent time.
Once everything has been gathered up by your Executor (Trustee) it is distributed in the following order; debts, taxes, funeral expenses, specific bequests, the residual estate.
So, supposing your estate was worth $100,000, and you left 50% of your residual estate to your brother. But you also left $10,000 to the Humane Society, and you had $5,000 owing on your credit cards. Your brother would actually receive 50% of everything that was left after debts (yes, your debts are paid off first), your funeral expenses, any taxes, and the charitable bequest are all paid out.
To give My grand piano to my Nephew, John Smith, of Toronto, if he survive(s) me by a period of thirty (30) days.
When you write a Will you can list out specific gifts, but be careful when you entered the information into our service at LegalWills.ca. For this clause to be compiled correctly, you must only put the item into the description, and then select the name of the beneficiary from the drop down list of beneficiaries. Read this sentence carefully to make sure you have entered it into the service correctly. If you want to leave something to more than one person, then you would leave half of it to one person and half of it to the other person as two separate specific gifts.
Bequests to Charities
To give the sum of $1,000 to The Toronto Humane Society, charitable registration number #11925 9513 RR0001, currently located at 11 River Street, Toronto, ON. M5A 4C2, to be used for its general purposes.
This clause is an extension of your specific gifts, but states that you are allowing the charity to use the bequest for their general purposes. This is related to the clause “Payments to Charities” that appears later in the Will.
In the event that my husband, Dan Doe, survives me by a period of thirty (30) days, to pay, transfer, and assign the residue of my estate to him for his use absolutely.
The legal wording of this clause is unfortunately different to how we would typically express this. The “30 day” qualifier is important for all of your bequests and is there in case you were both involved in an accident at the same time. Imagine you were both involved in an accident and you were killed instantly, but your residual beneficiary died a few hours later in hospital. Without this clause your entire estate would go to this person, to be distributed according to the directions in their Will. It is unlikely that this was your intent, even if the person died a few days later. The general rule is that if they survived you by more than 30 days, then they were not involved in a common accident with you, so your estate can flow to them.
This clause is effectively saying that if they do not die before you, or at the same time as you, then everything is going to them.
If my husband, Dan Doe, predeceases me, or survives me but dies within a period of thirty (30) days of the date of my death, then:
To divide the residue of my estate between my children in the following shares:
To my daughter, jane Doe: 1/2 share
To my son, Jimmy Doe: 1/2 share
If your first choice residual beneficiary does not survive you by 30 days, then your residual estate is going to go to your “alternate” or “backup” beneficiaries. In this case, the person left their residual estate to their spouse, but if their spouse died before them, or they both died at the same time, then the residual estate was to be shared equally between the two children.
If my daughter, jane Doe, predeceases me, or survives me but dies within a period of thirty (30) days of the date of my death, then to pay, transfer, and assign said child’s share of my estate to all of the living issue of said child in equal shares.
If my son, Jimmy Doe, predeceases me, or survives me but dies within a period of thirty (30) days of the date of my death, then to pay, transfer, and assign said child’s share of my estate to all of the living issue of said child in equal shares.
If all of my children predecease me, or survive me but die within a period of thirty (30) days of the date of my death, then to divide the residue of my estate among all of the living issue of such children in equal shares per stirpes.
Remember, this is the backup plan, but the Will is saying that if the first choice residual beneficiary is not alive, and then the first child is also not alive, then that child’s share will be divided equally between her children. And if neither child were alive, then the residual estate would be divided between all of the grandchildren “per stirpes”. This is an important concept.
Supposing you had two children, one of them had four children of their own, the other one had one child. You left everything to your children in equal shares, 50 percent each, but by the time you died, neither of your children were alive, so everything was to go to your grandchildren instead. There are two ways that your grandchildren could share the estate. They could all get one fifth each (this is “per capita” distribution, or “by head”), or the 4 grandchildren on one side can share a half of your estate, and the 1 child on the other side can receive their half of the estate. Both sides of the family are receiving what their parents would have received. (this is “per stirpes” distribution or “by branch”). Per stirpes distribution is the most common and considered by most to be the fairest method of distribution.
4. PAYMENTS FOR MINORS
EXCEPT as may be specifically otherwise provided herein, if any person should become entitled to any share in my estate before attaining the age of majority or while under any other legal disability, the share of such person shall be held and kept invested by my Trustee, and the income and capital or so much thereof as my Trustee shall, in their absolute discretion, consider necessary or advisable shall be used for the benefit of such person until he or she attains the age of majority or is no longer under such disability when such share or the amount thereof remaining shall be paid or transferred to him or her, or should such person die before attaining the age of majority or while subject to such disability, to his or her legal personal representative.
This is a standard clause when you use our service to write a Will, whether you not you have specifically left anything to a minor. In Canada you cannot leave any of your estate to a child under the age of majority (either 18 or 19 depending on the Province). So any inheritance left to a minor will be managed by your Executor (Trustee) and held in a “Trust”. This means that it belongs to the child, they just can’t access it directly. However, in this clause you are giving the Trustee (the person managing the Trust) the power to use the funds at their complete discretion for the benefit of the child growing up. So if there are healthcare costs, or education expenses, then the Trustee can release parts of the trust for the benefit of the child. But all the time, the Trustee must balance the needs of the child growing up with their responsibility to protect the funds, so that there is something left when the child becomes an adult.
5. HOLDINGS FOR MINORS
EXCEPT as may be specifically provided herein, I authorize my Trustee to make any payments for any person under the age of majority or who is otherwise under a legal disability to a parent, guardian or committee of such person or to any other person my Trustee may consider to be a proper recipient therefor whose receipt shall be a sufficient discharge to my Trustee.
This is a question we receive a lot; how can you give money to the guardian for the raising of the child?
When you write a Will you cannot leave something to one person for the benefit of another person. You cannot leave a sum of money to a legal guardian to fund the upbringing of the child. You either leave the sum to the guardian or you leave it to the child. Otherwise, somebody else would have to monitor the spending of that inheritance to ensure that it was only used for the child, and there are some grey areas like family vacations or home renovations that could be paid out of the inheritance “for the benefit of the child”.
The correct approach is to leave the inheritance to the child. It is then kept in trust and managed by the trustee. The guardian can work with the trustee to release funds for the benefit of the child. With this approach, the needs of the child are addressed, but there is also accountability between the guardian and trustee. The funds can be used to help the child when they are still minors, but with a view to protecting the assets in the trust so there is something left for them when they become old enough to receive the trust outright.
However, depending on the family dynamic it may make sense for the guardian to handle the trust directly. This clause gives the Executor/Trustee the authority and the option to hand over the child’s inheritance to the child’s guardian, who can then manage the trust on behalf of the child.
All property left in this my Will, to my daughter, jane Doe, shall be held in trust for her. My Trustee shall set aside her share as a separate trust and shall keep such share invested and, subject as is hereinafter provided, may from time to time until she becomes absolutely entitled to all the capital of her share pay to or apply for the benefit of her the whole or such part of the net income derived from such share or the part thereof from time to time remaining in trust and such part or parts of the capital thereof as my Trustee in his or her absolute discretion deem advisable. If in any year that my Trustee holds such share or any part thereof any portion of the said net income is not paid to or applied for the benefit of my daughter, jane Doe, such portion shall be accumulated by my Trustee and added to the capital of such share and be dealt with as part thereof; provided that after the expiration of the maximum period permitted by law for the accumulation of income hereunder, if my Trustee is then holding such share or any part thereof, he or she shall thereafter pay to or apply for the benefit of my daughter, jane Doe, the whole of the net income derived from such share. Upon my daughter, jane Doe attaining the age of 25 years, such share or the amount thereof then remaining shall be paid or transferred to her. If my daughter, jane Doe should die before receiving all the capital of her share, such share or the amount thereof then remaining shall be divided among the issue of her who shall be living at the death of the survivor of her in equal shares per stirpes or, if my daughter, jane Doe should leave no issue then surviving, among my issue who shall be living at the death of the survivor of my daughter, jane Doe in equal shares per stirpes, provided that if any child of mine shall thereby become entitled to any part of such share before attaining the age of 25 years, such child’s part shall be added to the capital of the share of my estate hereinbefore directed to be held in trust for such child and shall be dealt with as part thereof.
This is a very long clause that allows to you describe a specific trust clause for each minor. You may have one child or grandchild who can receive their inheritance at 18 years of age; you may have another that would be better served by receiving it at 28. This clause describes the ages at which they receive the trust and once again, gives the trustee the authority and discretion to release portions of the trust for the benefit of the child while they are growing up. You cannot predict what these needs may be. For example, the child may need some specialized medical treatment overseas, or may have an opportunity to attend a prestigious college, or go to the Olympics. This is why you would leave the decision-making up to your Trustee, a person that you have appointed because they will make the right decisions on your behalf.
7. POWER TO SELL OR HOLD
I AUTHORIZE my Trustee to use his or her discretion in the realization of my estate, with power to sell, call in, and convert into money any part of my estate not consisting of money at such time or times, in such manner and upon such terms, and either for credit or for part cash and part credit as he or she may in his or her absolute discretion decide upon, or to postpone such conversion of my estate or any part or parts thereof for such length of time as he or she may think best. My Trustee shall have a separate and substantive power to retain any of my investments or assets in the form existing at the date of my death at his or her absolute discretion without responsibility for loss to the intent that investments or assets so retained shall be deemed to be authorized investments for all purposes of this my Will.
Your Executor has to gather your estate and distribute everything according to your instructions. This could be a significant amount of money that has to be managed, as well as possessions. Your estate is made up of real estate, possessions, and money/investments. It is quite an undertaking to gather up everything and then manage it. This clause is giving your Executor the powers to sell items, or not sell, at their absolute discretion. For example, the contents of your house need to be dealt with, it may make sense to just sell it, or donate it. You are giving your Executor the power to do this. But supposing you had a US bank account and the Canadian dollar was at a historic all time low. This clause gives your Executor the power to postpone the conversion of that asset to maximize value for the estate. The clause is just giving the Executor the powers that they need to handle everything for you. It is a standard clause in all of our Wills.
I DECLARE that my Trustee when making investments for my estate shall not be limited to investments authorized by law for Trustees but may make any investments which in his or her absolute discretion he or she considers advisable, and my Trustee shall not be liable for any loss that may happen to my estate in connection with any such investment made by him or her in good faith.
Your Executor will be looking after your estate for quite some time until they have gathered all of your assets. This clause is giving your Executor the authority to invest the balance of your estate while they are processing the assets. They will not be held liable for any losses, but they would be expected to be prudent in making these investments. They have a legal responsibility to not be reckless with the estate.
9. PAYMENTS TO CHARITIES
EXCEPT as may be specifically provided herein, I authorize my Trustee to make any payments to any charitable organization to the person professing to be the Treasurer or other proper officer of any named charitable institutions or to any other person my Trustee may consider to be a proper recipient therefor whose receipt shall be a sufficient discharge to my Trustee who need not see the application thereof.
This clause troubles many people and must be read in its entirety. This clause is saying that IF there are any payments to be made to a charity, then the Executor simply has to give the bequest to the charity. They are not required to report back to the other beneficiaries exactly how the bequest was used by the charity. If there are no charitable bequests in your Will, the clause would be ignored. The clause is NOT saying that the Executor can make charitable bequests on your behalf.
10. DISTRIBUTION IN KIND
MY TRUSTEE may make any division of my estate or set aside or pay any share or interest therein, either wholly or in part, in the assets forming my estate at the time of my death or at the time of such division, setting aside or payment, and I expressly will and declare that my Trustee shall in his or her absolute discretion fix the value of my estate or any part thereof for the purpose of making any such division, setting aside or payment, and the decision of my Trustee shall be final and binding upon all persons concerned.
If you have divided your estate equally between your children, somebody has to value everything without necessarily selling everything. Supposing one child really wants a particular painting, then this clause is allowing your Executor to say “you have the painting, and Jane will get the diamond ring. I consider those to be of about the same value”. Somebody has to have the power to make these judgements, and your Will is making this person your Executor.
11. REAL ESTATE
I AUTHORIZE my Trustee to sell, partition, exchange or otherwise dispose of the whole or any part of my real property, in such manner at such time and upon such terms as to credit or otherwise as he or she in his or her discretion considers advisable, with power to accept purchase money, mortgage or mortgages for any part of the purchase or exchange price. My Trustee shall also have the power to mortgage, lease for any term the real or leasehold property forming part of my estate, subject to such covenants and conditions as he or she shall think fit, to accept surrenders of leases and tenancies, to expend money in repairs, alterations, rebuilding and improvements and generally to manage any such property. My Trustee shall also have the right to renew and keep renewed any mortgage or mortgages upon any real estate forming part of my estate or any part thereof, to borrow money on any such real estate upon the security of any mortgage or mortgages and to pay off any mortgage or mortgages which may be in existence at any time forming part of my estate. I also give to my Trustee power to execute and deliver such deeds, mortgages, leases or other instruments as may be necessary to effect such a sale, mortgage, lease or other disposition. The power of sale herein is discretionary and not mandatory.
If your estate includes real estate holdings, titles will have to be transferred and mortgages may have to be settled. If you leave your home to your daughter, but there is a mortgage outstanding on that home, your Executor will have to manage the transfer of that home and mortgage to the new owner. This clause gives your Executor all of the powers that they will need to transfer ownership of a property, or even to sell a property if it is being divided between more than one beneficiary. Take a close look at the final sentence, this is simply an option, it is not an instruction to your Executor to sell everything. However, without this clause, property transfer can become very complicated.
12. SETTLEMENT OF CLAIMS
I AUTHORIZE AND EMPOWER my Trustee to compromise, settle, waive or pay any claim or claims at any time owing by my estate or which my estate may have against others for such consideration or no consideration and upon such terms and conditions as my Trustee may deem advisable and to refer to arbitration all such claims if my Trustee deems same advisable.
When your Will comes into effect, you may have outstanding loans, or payments due to you. This clause is giving your Executor the authority to settle on these. They will be able to work with a credit card company, or represent you in requirement money to be paid back to you. Supposing you loaned a friend $5000, it was documented, and still owed when you died. Your friend may feel that the debt died with you, but this clause is allowing your Executor to represent you and collect on that debt. It is now money that is indirectly owed to your beneficiaries.
13. PROFESSIONAL ADVISORS
I AUTHORIZE my Trustee to employ and pay out of my estate such professional advisors as my Trustee may deem necessary in the discharge of his or her duties and to act upon such advice and opinions as he or she may receive from any such professional so employed and my Trustee shall not be liable or responsible for any loss that may be occasioned to my estate by reason of him or her so doing.
When you write a Will, you can appoint a lawyer or a bank as your Executor, but most people using our service appoint a friend or family member. It just makes sense. The task of administering an estate is actually not that difficult (although it can be time consuming) and professionals charge a lot of money. Not just an hourly rate, but often a percentage of your estate on top of that. If your estate is just passing to one or two people, this can mean that a lawyer is making tens of thousands of dollars for a few hours of work. Not only that, but your friend or family member probably has a better idea of your financial assets and possessions. They will probably know which of your assets can be disposed of, and which are family heirlooms. It just makes more sense to use a family member.
However, it can sometimes get tricky, particularly with things like filing final estate taxes or investments. This clause makes for the best of both Worlds. You appoint your friend or family member, but give them the authority to hire a professional when they need it, and pay the professional fees out of the estate.
MY TRUSTEE may appoint a person or corporation to act as my Trustee’s agent for the management of my estate and from time to time may terminate such appointment and/or make another. My Trustee is authorized to fix the remuneration to be paid to any such person or corporation and such remuneration is to be charged upon my estate and payable out of the capital and/or income thereof in such proportions as my Trustee from time to time decides. In making any such arrangement as aforesaid, my Trustee may place the investments comprising my estate, or any of them, in the custody of such person or corporation and may transfer such investments, or any of them, into the name of such person or corporation, or any nominee thereof. Without limitation, my Trustee may delegate my Trustee’s investment authority to investment counsel provided my Trustee sets investment guidelines; and my Trustee may delegate his or her investment authority in the course of or as a result of the investment in, or the purchase or holding of, shares or units of mutual fund corporations or trusts or shares or units of pooled funds.
Your Executor will have to do something with your assets as they are being gathered. For example, you may have mutual fund investments that are being managed by an account manager. This clause allows your Executor to use a person or a company to continue to invest those mutual funds or to liquidate them. Some investments have locked in restrictions meaning that they cannot be immediately released. The clause is just giving your Executor the authority to work with fund managers to deal with your investments.
I HEREBY DECLARE that my Trustee shall not be liable for any loss that may happen to my estate or to any beneficiary hereunder resulting from the exercise by my Trustee in good faith of any discretion given him or her in this my Will.
Your Executor has been chosen because you trust them, and they have the personal and professional capabilities to administer your estate. But things are going to happen. They may accidentally knock over your Ming vase while clearing out your house, or accidentally donate your signed first edition Marvel comic to Goodwill. They will be dealing with a lot of stuff, so this clause ensures that they are not going to be held responsible for making a genuine mistake if they are trying their best.
16. LIMITING INTEREST OF SPOUSES OF BENEFICIARIES
I DECLARE that no gift, or the income therefrom, under this my Will shall be assigned or anticipated, or fall into any community of property, partnership or other form of sharing or division of property which may exist between any beneficiary and his or her spouse, and every gift together with the income therefrom shall remain the separate property of a beneficiary hereunder, free from all matrimonial rights or controls by his or her spouse.
This is an important clause. If you have left your estate to your daughter, but some time later she separates from her husband. Her inheritance is not “community property” meaning that her estranged husband cannot claim half of her inheritance as part of the divorce settlement. The inheritance belongs to your daughter, and to her alone.
17. TRUSTEE COMPENSATION IN ADVANCE
I AUTHORIZE my Trustee to take and transfer to himself or herself at reasonable intervals from the income and/or capital of my estate amounts on account of compensation which my Trustee reasonably anticipates will be requested at the end of the accounting period in progress, either upon the audit of the estate accounts or on approval by the beneficiaries of my estate. Provided, however, that if the amount subsequently awarded on Court audit or agreed to by the beneficiaries is less than the amount so pretaken, the difference shall be repaid forthwith to the estate without interest. The preparations of estate accounts and tax returns shall be proper expense of my estate and shall not reduce the amount of compensation to which my Trustee would otherwise be entitled. Any Trustee of my Will who is a professional person shall be entitled to Executor’s or Trustee’s compensation in addition to reasonable fees for professional services rendered by such Trustee or by any partner, associate or employee of such Trustee or by any company of which such Trustee is an employee.
When you write a Will at LegalWills.ca we do not allow you to specify a level of Executor compensation, and there is good reason for this. It is extremely difficult to set a level of compensation for your Executor while writing your Will. You don’t know when the Will is going to come into effect; it could be next week, it could be in twenty years time. You don’t know the size or complexity of your estate. If there is a challenge to the Will, or a legal settlement that forms part of your estate, the Executor’s task can be extremely complicated. Supposing your death was caused by an accident and somebody was held liable. Your Executor could be involved in litigation that you could not possibly foresee. This is why we recommend that you leave the Executor compensation to the level set by the Provincial courts. Each Province has its own formula for establishing Executor compensation based on the size and complexity of the estate.
However, sometimes the administration of an estate can take a long time, in some cases over a year. This clause allows your Executor to take some of their compensation as they are working on the estate, and not wait until everything has been completed.
IN WITNESS WHEREOF I have to this my Last Will and Testament, written upon this and ____ preceding page(s), subscribed my name this _____ day of _________________, ________.
Within this clause you write the number of pages that preceded this one. So if your Will is 6 pages long, you will say “on this and 5 preceding pages”. You then give the date, for example this 25th day of June 2017.
Signing your Will
To make your document a legal Last Will and Testament you should firstly download and print it. It must then be signed in the presence of two adult witnesses who are not beneficiaries in the Will. These can be any two adults; friends, neighbours or co-workers, as long as they have nothing to gain from the contents of the Will.
Once it is signed and witnessed, it becomes a legal Last Will and Testament. There is no requirement to have the document notarized, stamped, or signed by a lawyer. Nor does the document need to be registered.
You simply store the document somewhere safe, in a place that is known and accessible to your Executor. After you have passed away, your Executor should take the document to your local probate court, where it is accepted as your Will, and filed with the courts.
Tim Hewson is one of the founders of LegalWills.ca.
He has over 20 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets including CTV, Global News, The Toronto Star, and other leading Canadian publications. He has also contributed to a number of financial planning books.
Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
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