DO IT YOURSELF WILLS
So, we can't convince you to seek legal advice before you make your own Will. If you insist, please haul out your Will and make sure you haven't committed one of the common errors outlined below. We have seen all of these errors, some of which have had to be interpreted by a judge or have flat out led to invalidation of the Will.
Try to keep your list of specific bequests simple, that is, a few items. Also make sure they are readily identifiable. "Aunt Mary's tea set" might mean nothing to anybody if you have three other tea sets and you haven't told your executor which one was Aunt Mary's. There will be an even bigger problem if Aunt Mary's set is worth $5,000 and the other two came from Wal-Mart.
A trust is set up when property is given to a trustee (your executor) under certain conditions. For example, a common trust is one set up to administer funds for a disabled child, allowing the executor to distribute funds to the child on a discretionary basis for the child's lifetime, and providing at the child's death that the property is disbursed to your other children. A trust can be inadvertently set up by indicating that the beneficiary of the bequest does not have total control of the property. It is quite common to see family heirlooms given to children on the basis that they not sell the heirloom and that it is passed on to future generations. Such a gift is likely invalid, because the law does not allow property to be in trust forever. The bottom line is that if you are drafting your own Will, keep it simple—just give people the property and don't try to restrict their usage of it. If you insist on the restrictions, you need to see a lawyer.
Make sure your beneficiaries receive a readily identifiable share, that is, an equal share or a percentage share (and make sure the percentages add up to 100%). The beneficiaries themselves should be readily identifiable and the clause should be simply worded.
Property Passing Outside Your Will
Remember that property held with joint survivorship—life insurance, RRSPs, and your home, to name a few—allows you to designate a beneficiary that receives property without becoming part of your estate or being dealt with through the Will. If you hold property in joint tenancy with your children, do not try and impose conditions on the children with regard to the use of the property, because you have in effect given them the property without conditions previously. If you seek to impose conditions in your Will, for example, that they pass the property on to your grandchildren, it might even bring into question the transfer to the children. If you own property in joint tenancy with your spouse or another person, it is wise to have a common scheme for distribution of the property on the death of the survivor. This is especially important in a second marriage with two sets of children. The youngest, or the one who outlives the other by a day, could inherit the property and pass it on to their children to the exclusion of the other spouse’s children.
Make sure you get the legal name of any charity that you want to benefit through your Will. Many charities have similar names. If you guess the name, two charities could end up competing for your bequest in front of a judge. Charities are always happy to assist potential beneficiaries with their correct legal name and any special wording the charity might suggest for specific direction of the funds.
Make sure the document is signed and properly witnessed by two witnesses under the rules in the Wills Act. This is very important because courts are very strict on the execution requirements of a Will, and Wills have been declared invalid due to technicalities in signing or witnessing. For example, if the wife of a beneficiary witnesses a Will, the beneficiary's bequest is nullified.
If you see any of these errors in your hand-drawn Will, then you might want to get some legal advice. Poorly drawn, incomprehensible Wills result in estate litigation. The family anguish caused far outweighs the cost of a properly drafted document.
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