Will is a testamentary instrument which allows a testator to express his or her volition with respect to distribution of property upon his or her death. A Will shall appoint an Executor of the estate, and provide specific instructions regarding property distribution. It may also contain wishes with respect to the testator’s burial and custody of minor children, among other wishes.
While some of the wishes expressed in a Will are binding upon the Executor, the others, such as burial instructions and custody of children, are not binding, and may, in some circumstances, be disregarded by the Executor or varied by Court.
There are numerous rules and conditions that regulate preparation of a valid Will. An experienced lawyer will help to prepare a valid Will, reducing chances of it being challenged later in Court. Execution of a new Will automatically revokes an existing Will, unless multiple Wills are prepared to address distribution of different properties (usually in different jurisdictions). A Will can be modified or clarified by a Codicil.
The act of marriage does not automatically revoke an existing Will starting from January 1, 2022, and if spouses separated but did not have a chance to divorce each other prior to one of the spouses dying, the fact of the separation alone will eliminate the survivor’s property rights to the deceased’s estate, as it was used to be the case before January 1, 2022. These are the changes that are coming into force on January 1, 2022.
If a person does not have a Will upon his or her death, the deceased’s Estate falls into intestacy and is distributed according to the Succession Law Reform Act. The Estate does not automatically go “to the government” as some people incorrectly assume.
There are cases in which there is partial intestacy, when a testator, for example, omitted some of the terms in his or her Will, or did not deal with part of his Estate in the Will. If this is the case, then that part of the Estate is distributed in accordance with the Succession Law Reform Act.
Some property of the deceased will not fall into his or her estate: it will pass on directly to beneficiaries by way of other instruments, such as by right of survivorship in case of a jointly held asset, by designation under an insurance or pension policy, etc. If that is the case, that asset will not be subject to the Estate Administration Tax upon the testator’s death, since it is not part of the Estate.
When a testator dies with a valid Will, in most cases the Executor needs to be appointed through Court to deal with the Estate. Even though the Executor has already been appointed by the testator in his or her Will, it is necessary to obtain a Certificate of Appointment of Estate Trustee with a Will from the Court. At that stage of the proceeding, the appointment, as well as the validity of the Will, may be challenged by relatives, friends or beneficiaries under the Will.
The validity of the Will may be challenged on different grounds: duress, undue influence, fraud, lack of mental capacity of the testator to execute a valid will, etc. That is why it is important to have the Will prepared by a lawyer, who is equipped with knowledge and experience to reduce the chances of the Will being challenged.
Once a Certificate of Appointment of Estate Trustee with (or without) a Will has been issued, the Executor will be able to effectively deal with the Estate. Estate administration is a regulated process. An Estate Trustee is responsible for managing the Estate efficiently and impartially. An Estate Trustee owes fiduciary duties to the beneficiaries of the Estate, and, therefore, is fully accountable for his or her actions.