Wills, Estates, Trusts Law
Will Drafting & Caveats
A Will is a critical part of an estate plan. It is important to use a lawyer to draft your Will to ensure the Will reflects your wishes and that the Will is legal and meets the requirements of all applicable laws. A lawyer drafted Will is very different than a do-it-yourself Will kit that you got from the staple store. HTW Law will take necessary steps to ensure each of the following:
1. The client who wants his/her Will to be drafted the requisite degree of mental competence to give instructions for a will, and be capable of understanding the nature and extent of the assets and of comprehending and appreciating the persons who shall receive the assets. It is a pretty low legal standing resulting in someone might not have the necessary mental capacity to manage his own financial affairs and yet be competently enough to draft a Will;
2. The client’s expressed wishes are not the result of undue influence or duress exerted by others. HTW Law will avoid having anyone other than the testator present when instructions are being given or when the Will is being signed to ensure that the client’s Will was a result of his/her own freewill;
3. The client provides a full and accurate inventory of the client’s property, together with any information or documentation that may have a bearing on the client’s authority or ability to dispose of any of the property. HTW Law will check further and advise the client accordingly in situations where a client’s testamentary intentions may be foiled by a dependant’s support claim (Part V of the ) or by a matrimonial property claim by the client’s legal spouse (Part I of the );
4. There is no term in the Will that is unenforceable.
5. The client understands and approves of the contents of the Will;
6. The appropriate degree of diligence is applied to see that the Will is signed on a timely basis;
7. There is compliance with the statutory formalities for signing the Will;
8. HTW Law will ensure that the will is drafted in language sufficiently clear and unambiguous so as to minimize the likelihood of a dispute as to the true intent of the client at a later time;
9. HTW Law will also ensure, as much as possible, that all the terms in the Will are enforceable by the estate trustee without barrier. For instance, extensive powers and authority should be given to the estate trustee to administer the Will so as to minimize the likelihood of a need to vary the terms of the Will at a later time.
Testamentary Custody – Can I decide who Take Custody of my Child after I die?
One interesting topic did come up quite a look which deals with testament custody. Parents (or other entitled to custody of a child) may appoint by will one or more persons to have custody of the child immediately following their death. Such estate planning is permitted under the Children’s Law Reform Act (CLRA), but only if two conditions are met: (1) The testator has custody of the child before he/ she dies; and (2) The chosen individual(s) must consent to the appointment.
Please be note that such appointment(s) by will, or testamentary custody, is only effective for a maximum of 90 days after the appointment becomes effective (i.e. 90 days from date of death).
The ultimate determination of custody is reserved for the Court, on application by the person(s) appointed in the Will. Other family members, however, are not precluded from commencing their own (competing) custody applications. Although the Court will take into consideration the testator's wishes, the final determination of the outcome hinges on the best interests of the child. The CLRA provides that a child's views and preferences shall be taken into consideration to the extent that a child is able to express them, especially if the child is 12 years old or above.
HTW Law can help. Call us now at 647-849-6582 or send us a message if you have some legal questions / inquiries or want to schedule an appointment with HTW Law.