Estate Planning - Will | Canada

Estate Planning - Will | Canada

By: Rajesh K. Sharma, Advocate (LinkedIn)

Introduction

  • Lawyer Responsibilities: Lawyers must ensure clients have testamentary capacity, are free from undue influence, understand the will, and comply with statutory formalities.
  • Testamentary Capacity: Verify the client’s mental ability to make a will.
  • Undue Influence: Ensure the client’s decisions are made without external pressure.
  • Collect detailed information about the client’s assets, liabilities, and personal circumstances.

Statutory Constraints

  • Dependant Support Claims: Plan for potential claims from dependants.
  • Matrimonial Property Claims: Consider spousal claims under matrimonial property laws.

Other Considerations

  • Understand and draft mutual wills that bind surviving spouses to agreed terms.
  • Implement strategies to reduce estate administration tax, like using multiple wills and joint ownership.
  • Advise on the tax implications of estate planning decisions.
  • Address the impact of foreign laws on estates with international assets or beneficiaries.
  • Obtain detailed instructions on:
    • Estate trustees.
    • Guardians for minor children.
    • Funeral and burial wishes.
    • Property distribution.
    • Family home and cottage arrangements.

Will Drafting

  • Administrative Provisions: Include powers for estate administration.
  • Incorporation by Reference: Use memoranda for personal effects.
  • Trust Issues: Address investment authority and trust rules.

Signing

  • Formal Wills: Comply with witnessing and signing requirements.
  • Alternative Witnessing: Use technology or counterparts for witnessing.
  • International and Holograph Wills: Address their validity and court validation procedures.

Storage

  • Advise on safe storage of the original will and implications of losing it.

Key Takeaways

  • Ensuring the client’s capacity and freedom from influence is crucial.
  • Comprehensive information gathering and clear client instructions are essential.
  • Planning for taxes, statutory claims, and potential international issues is necessary.
  • Proper drafting, signing, and storage practices ensure the will’s validity and effectiveness.