Wills and Estates Jordan Junek January 12th, 2016 Law 30--Mr. Copp

Definitions Succession: The law regulating who gets a person’s assets when he or she dies. Testator: A person who makes a will; if you die with a valid will you are testate and if you don’t you are intestate. Executor: A person who is appointed in a will to carry out the distribution of a deceased person’s assets. Holograph Will: A will that is written entirely in the testator’s handwriting and is signed by that person. Estate: The term given to all the assets of a deceased person. Codicil: A document that explains, adds to, or changes an existing will.

Key aspect - Wills/Dying Without a Will A will is a document setting the distribution of a person’s assets upon death. Wills can either be written formally with the help of a lawyer or as a holograph will that is valid in most provinces and territories. Wills also appoint an executor as well as alternative executors if the first is unable or unwilling to perform the task. If you die without a will then an administrator will be appointed by the courts to divide the assets. There are certain rules of division that administrators must follow that are outlined in legislature. For example if there is a spouse but no kids, the spouse gets the entire estate, but if there are kids, the spouse get half and the kids divide the other half equally.

Key aspect - Estates Before any will is executed, the entire estate must be valued. An appraiser must be hired to find the numeric value of the estate for debt and tax purposes. A will also must be validated before the estate can be distributed. To validate a will, it must be found that the testator was sound of mind when writing the will, and was not influenced by any person to benefit that person more than anyone else. This can prove a problem if the will had been re written and the previous will not revoked, so there are now two wills, or if the will was changed using a codicil and it wasn’t formally, legally recognized.

Key aspect - Death and Taxes Before a will is distributed, all debt that the deceased may have, has to be paid off, by taking out of the estate. Also, after the estate is given a numeric value, the executor has to file a complete tax return. The executor is also responsible for paying any unpaid taxes of the deceased person, and these taxes must be paid before the will is executed.

Example in law - Re Harris (1948), Can. Bar Rev Harris was a farmer who through a farm accident became pinned under a tractor. While he waited for help, and lay dying, he took a pen knife from his pocket and scratched onto the tractor fender a holograph will that stated that he left the entire estate to his wife. He had left no other will, so the fender was brought into court and after is was proven that Mr. Harris was fully sound of mind at the time of the scratching of the will, the holograph will was considered valid, and the entire estate was awarded to his wife.

2 Controversial Questions i) How can family be sure that the final wishes of a deceased loved one be carried out if they were given in a living will, which is a spoken will, and that third parties don’t try to insert themselves into the situation to benefit? ii) Should children who were adopted have a right to inherit part of their biological parents’ estate?

Citations Marcotte, C., Buckingham, D. E., Epp Buckingham, J. L., Manning, B., & Thompson, L. (1997). Learning about law. Toronto: McGraw-Hill Ryerson. Roper, K. (n.d.). Controversy With Living Wills. Retrieved January 12, 2016, from Murphy, J. R., Jr. (1957). Adopted child's right of inheritance from the natural parents. Retrieved January 13, 2016, from xt=clevstlrev xt=clevstlrev