Wills

What is a Will?

A Will is a written document that lets you state how and to whom your property is disposed after death. Generally, the Will is a binding legal document that enables you to control who gets what following your death.

What is a Beneficiary?

Beneficiaries are the people or institutions to whom you leave gifts of property or money.

How Often should I change my Will?

As long as you are mentally competent, you can change your Will as often as you like. However, informal changes made by simply striking out parts of the Will or writing in amendments may not be legally effective. You must either write a new Will or make changes to your existing Will through a formal amendment, known as a Codicil.

A Will should be reviewed every few years as your circumstances change. For example, your Will is usually no longer valid if you get married after making it. Likewise, certain provisions of the Will may be inoperative if you divorce.

Choosing an Executor

A Will should state who you appoint to be your Executor.

An Executor’s duties include:

  • Applying to the Court for probate or “proof” of the Will
  • Locating, listing and valuing all assets of the estate
  • Gathering in all money and property belonging to the deceased
  • Locating and listing all debts of the deceased, including placing an advertisement giving creditors notice of a deadline for filing claims against the estate
  • Paying funeral expenses and other debts of the deceased
  • Locating beneficiaries
  • Paying or delivering bequests
  • Transferring real estate
  • Preparing and filing income tax returns

An executor need not be a person with any legal training or background. He or she is simply a person whom you believe to be a capable and trustworthy person. The Executor may also be a trust company. Usually the Executor will retain a lawyer to assist with the legal, documentary and tax requirements associated with administering an estate. Your Executor can also be a beneficiary under your Will. For example, frequently a husband will name his wife Executor and also make her his major beneficiary.

Types of Executors

You may have more than one Executor in your Will. It is usually advisable to nominate an alternate Executor, in case your first choice dies before you do, is too ill to act, or for any reason is unwilling to act as Executor at the time of your death.

You may also appoint joint Executors, whereby two people are named to act jointly in administering your estate.

Similarly, if you have three Executors they may disagree as to how to handle certain aspects of your estate, and therefore the Will should include provisions regarding how such a dispute is resolved–for example, by a majority vote of the Executors.

Providing for your children

A properly drawn Will protects children who are minors, or, if adults, are inexperienced in handling money or property.

A Will can create trusts whereby the Executor holds funds in trust until the child attains the age of majority (eighteen years in Manitoba), or a later age if desired, yet at the same time is free to pay some funds to or for the benefit of the child if there is a real need. Often trusts are established in Wills so that a minor child, or a spendthrift child, can’t get his or her hands on all of his or her inheritance at once.

Appointing Guardians

A Will should also nominate a guardian or guardians for minor children. In Manitoba, ultimately only the Court can grant a formal order of guardianship. However, a parent’s choice of a guardian in a Will is almost always followed by the Court. Putting your choice of guardian in a Will may avoid a costly Court battle as to who is the proper guardian.

What happens if you don’t have a Will?

If you die without a Will, problems may arise.

The first problem is, because there is no appointed Executor, a spouse or family member must apply to the Court to be named administrator of the estate. This generally requires the filing of a bond and may require other family members filing documents with the Court known as renunciations or nominations, which really amount to other family members giving the person who is applying to the Court their formal consent to his or her acting. Sometimes, when there is no Will, family disputes arise as to who should administer the estate.

The second potential problem if you die without a Will is that your estate will be distributed in accordance with Provincial laws which may not coincide with your wishes. In Manitoba, if you have no Will and are survived by a spouse and/or children you had with that spouse, all of your property will go to your spouse. However, if there are children you had with someone other than your surviving spouse, the estate is divided between them and your spouse.

These Provincial rules can sometimes work an unfairness. For example, if the deceased has no spouse and leaves only an estranged son, where he is the only child, he would cash in and inherit the whole estate, while an elderly and needy parent, or similarly a beloved and needy grandchild, would get nothing.

Another frequent problem concerns distribution of the deceased’s personal effects, for example, jewellery or family heirlooms. The deceased may have made sincere promises before dying to leave specific items to specific individuals. However, no legally effective record of these intended gifts exists. Such problems can easily be avoided by a will which details how such personal effects are to be distributed.

The Provincial rules governing distribution of the deceased person’s property where there is no Will are inflexible. The Provincial rules leave nothing to other relatives, close friends, organizations or charities. These gifts can only be accomplished through a Will.