Creating a will is an essential step in ensuring that your assets are distributed according to your wishes after your death. In British Columbia, the process involves specific steps and legal requirements. This article will guide you through what a will is, who can make a will, the procedures for making one, who can be a witness or executor, and considerations when the testator has minor children. We will also explain what happens if a will is deemed defective.
What is a Will?
A will is a legal document that outlines how your assets and property should be distributed after your death. It allows you to specify beneficiaries, appoint guardians for minor children, and designate an executor to manage your estate. You may also specify your funeral arrangements and other final wishes. A will ensures that your wishes are followed and can help prevent disputes among family members and loved ones.
Procedures for Making a Will
Choose your Beneficiaries: Start by listing all your assets and deciding who will inherit them.
Choose an Executor: Select a trustworthy individual to administer your estate.
Write the Will: Clearly state your wishes regarding the distribution of your assets.
Sign the Will: You must sign the will in the presence of two witnesses.
Have Witnesses Sign the Will: The witnesses must also sign the will in your presence and each other’s presence.
While it's not legally required to have a lawyer draft your will, consulting with a lawyer can ensure that your will is legally valid and that your wishes are clearly and accurately documented. This can help prevent potential disputes or issues after your death.
Who Can Make a Will?
In British Columbia, anyone who is at least 16 years old and of sound mind can make a will. Being of sound mind means that the person understands the nature of making a will, the extent of their assets, and the claims against their estate.
Who Can Be a Witness?
Witnesses must be at least 19 years old and cannot be beneficiaries or the spouses of beneficiaries. This helps ensure that the witnesses do not have any vested interest in the will’s provisions.
Who Can Be an Executor?
Executors can be family members, friends, or professionals such as lawyers or trust companies. The executor should be a responsible and reliable person who is willing to carry out the terms of your will.
When the Will-maker has Minor Children
When drafting a will, special considerations are needed if you have minor children:
Appointing a Guardian
You should name a guardian for your minor children in your will. This person will take on the responsibility of caring for your children if you pass away before they reach adulthood.
Setting Up a Trust
It is often advisable to set up a trust to manage the inheritance of your minor children. This ensures that their financial needs are met until they reach a specified age.
Choosing a Trustee
The trustee will manage the trust for your children. This should be someone you trust to act in the best interests of your children.
Financial Arrangements
Outline how the funds should be used for your children’s education, health care, and general welfare.
What is a Defective Will?
A will may be deemed defective if it does not comply with legal requirements. Common issues that can render a will defective include:
lack of proper signatures (by the testator and witnesses);
undue influence or coercion;
the will-maker not being of sound mind at the time of drafting the will; or
incorrect wording or unclear instructions.
If a will is found to be defective, it may be partially or entirely invalidated, leading to potential disputes and the estate being distributed according to intestacy laws.
In British Columbia, the court has the power to rectify certain defects in a will. This is known as the "curing power" under the Wills, Estates, and Succession Act (WESA). If a will does not meet all the formal requirements (such as proper witnessing), the court can still declare the will valid if it is satisfied that the document represents the testamentary intentions of the deceased. This provision helps to ensure that minor errors or omissions do not invalidate a will that genuinely reflects the wishes of the testator.
Conclusion
At Pinewood Law Corporation, we understand the importance of creating a will that reflects your wishes and protects your loved ones. Our experienced probates and wills team is here to guide you through every step of the will-making process, ensuring that your will is legally sound and comprehensive. Contact us today to schedule a consultation and take the first step towards peace of mind.
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