Say what you mean in your will, because a court might not figure it out for you

One of the biggest drawbacks of home-made wills is that people are not very good at making their intentions clear to others. Even when wills are made by lawyers, from time to time there is a clause that is unclear. When this happens, the executor will have no choice but to resort to the courts for help in figuring out what the heck to do with the estate.

A new case from Nova Scotia has clarified what the court is and is not prepared to do in these situations. The case, from December 2012, is In Re Das, and revolves around a will made for Mr. Das by his lawyer. The will was somewhat complicated, and problems arose with an account from RBC Dominion Securities worth about $1Million.

There were two problems with this account, and the different ways the court dealt with them are good examples of what a court will fix and what it will not fix.

The first problem was that there was a typo in the account number of the investment in the will. The court looked at all the evidence and agreed that it was  just a typo. The court said it was pretty clear that Mr. Das meant to mention the correct account number, so the will could be relied upon as if the proper account number had been included.

The second problem was something much more troublesome. Mr. Das specifically excluded the account from the distribution of certain assets of his estate to his wife and daughter. But then he wasn't clear about what was to happen to the account. The way the will was worded, the account might have been intended for charities mentioned in the will, his wife or his daughter in some proportion.

The court said that based on the wording of the will, as well as outside evidence, it was impossible to tell what Mr. Das had intended to do with that account. The court said that it could only speculate, and that they did not believe that speculation was their role. In the end, they declared that the investment account was not covered by the will and therefore must be distributed according to the intestate laws of the province.

The case makes it clear that the responsibility lies on each of us to make sure that our intentions are properly expressed in our wills. The courts will help out when they can, but they've said they won't simply make things up where the evidence doesn't exist.

To read more about this case, click here to read a blog post by lawyer Chris Staples.

My personal advice to those of you who are making will is this. If possible, find a lawyer who specializes only in wills and estates. If no such lawyer is available in your area and there isn't a major centre nearby with that expertise available, try to find a lawyer who you know has done a good number of wills. Secondly, this is no time to cheap out. Sure, you might save a couple of hundred dollars, but the legal costs your estate pays later could be in the tens of thousands.

How will we know who you're talking about?

In my job, I spend quite a bit of time talking to people about who should inherit their estates once they've passed away. I urge people to be as clear as possible, and remind my clients that their meaning has to be expressed in writing in a way that needs no explanation or clarification from outside sources.

The need for greater clarity often arises when a testator (person whose will it is) leaves an inheritance to a group of people. For example, many readers will acknowledge that their own wills leave an inheritance to the group of people known as "my children". Hopefully the will is crystal clear on whether "my children" includes biological, adopted, step-children and children born of previous relationships.

A case from BC (Estate of Cecil Charles Herbert Holmes, 2007 BCSC 51) looked at a will in which a man left a gift of money to "my nieces and nephews". The question was whether that group of people included only the 11 children of his siblings, or whether it also included the 18 children of his wife's siblings. The executor needed clarification, as no matter what he did plenty of people were going to be unhappy with him, and the only place to get clarification  is from the court.

In this case, the phrase "my nieces and nephews" was determined to include the wife's nieces and nephews as well, but it might be decided differently in another case.

The lesson to be learned here is that if you're not clear who you're talking about in your will, your executor might end up taking your will to court for help figuring out your instruction. This costs money, which comes out of your estate, and holds everything up while your executor waits for the court date to roll around. And if the executor does the wrong thing and doesn't take it to court, your money could end up being paid to people who are not the ones you intended to beneft.

To read more commentary about this case from http://www.disinherited.com/, click here.
To read the entire case (as I'm sure you all will), click here.

Take Care to Ensure Your Will is Properly Executed

The link below goes to an article from Megan Connolly, a Toronto lawyer with a specialty in wills and estates. In this article, Ms Connelly talks about a recent court case in which a will was held to be invalid because it wasn't properly signed and witnessed. This led to the assets of the estate being divided in a way that the deceased hadn't intended. Click on the link to read the article.

Take Care to Ensure Your Will is Properly Executed

Who qualifies as a grandchild or great-grandchild under a will?

Check your will. Does it say that some part of your estate is to be left to your grandchildren or great-grandchildren? If so, is it your wish that the estate be shared with step-grandchildren, or just among those who are blood relations? It might be clear to you just who you intend to benefit, but perhaps it's not so clear to others who have to rely on your will for instructions.

Megan Connolly, a Toronto lawyer, has analyzed the recent Lang Estate case from BC, in which the court made a decision about who qualified as a grandchild under a will. Click here to read Ms. Connolly's post.