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11

Will British Columbia (Part 3): Is a Lawyer Required?

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Last Will and Testament (British Columbia)

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, you should seek professional assistance.

Remember: if you’re looking for a Legal Will in the Province of British Columbia, then look no further:

Last Will and Testament (British Columbia)

This Will allows you to:

  • name someone (Estate Trustee) to administer your estate and transfer your property at death;
  • make cash gifts, charitable gifts, and gifts of real or personal property to specific beneficiaries; and
  • transfer the residue of your estate (i.e. the left over assets) to your surviving spouse OR to your surviving issue (e.g. children, grandchildren) OR in trust to your surviving spouse with the remainder going to your surviving issue when your spouse passes away.

Remember: this Last Will and Testament is lawyer-prepared, customizable, affordable, and comes with a ton of free guidance (a video tutorial and written guides!). All for just a fraction of the cost a lawyer would charge (which in 2010, was over $344 for a simple Will for just one person: check out page 3 of 6 in this national fee range report).

Is a Lawyer Required to have a Will?

While a lawyer is not legally required for you to have a Will drafted, reviewed, or executed, it is nevertheless in your best interests to do so. Only a few things are needed in order for a Will to be valid and enforceable. But if you don’t do these basic things properly, the Will may be contested through litigation. In addition to ensuring that the legal requirements of drafting a Will are met and that the specific wishes of the Testator / Testatrix are addressed, a lawyer will typically deal with a number of other issues that could jeopardize the validity of a Will.

First, a lawyer will inquire into the mental state of the Testator / Testatrix. A lack of capacity to enter into the Will may be grounds to invalidate it. If there is a doubt as to the Testator / Testatrix’s mental capacity to enter into the Will (e.g. due to age or physical, mental or emotional illness, etc.), the lawyer may call an appropriately qualified medical practitioner to be present at the time instructions are given. Those instructions may also be video recorded. In Banks v. Goodfellow, 1870 WL 11622 – the English Court of Queen’s Bench famously wrote:

“It is essential to the exercise of (the power of testation) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

Second, a lawyer will also try to make sure that the Testator / Testatrix is not entering the Will as a result of some duress or improper or undue influence from an external force. For example, a spouse or child of the Testator / Testatrix may physically or psychologically COERCE the Testator / Testatrix to recognize their claims in the Will. Suspicious circumstances may arise when the person preparing the Will for the Testator / Testatrix is also a beneficiary of it. This can be grounds for challenging the Will (in whole or in part). The Testator / Testatrix must enter the Will freely and voluntarily or else it may be contested. A lawyer will typically exclude interested parties from being present at the time the Testator / Testatrix executes the Will.

Third, a lawyer will be able to discuss with you income tax, probate, and statutory claim considerations. When you die, you are automatically deemed to have disposed of (immediately before death) all your assets for fair market value: section 70(5)(a) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). As such, any resulting taxable capital gains have to be included in your income in that year. These capital gains, however, can be deferred through the use of a spousal rollover, which a lawyer can help structure. If you own shares of a qualified small business corporation (which a lawyer can also advise you on), you may also be entitled to a lifetime capital gains deduction (which is presently $375,000). With respect to minimizing probate fees, there are a number of legal possibilities which can be canvassed with your lawyer – such as transferring assets into joint ownership, designating beneficiaries of RRSP’s, RRIF’s and insurance policies, or establishing an inter vivos trust. Finally, your estate may be liable to pay your dependant spouse or children (pursuant to section 2 of the Wills Variation Act, R.S.B.C. 1996, c. 490) more than what they would otherwise be entitled to under your Will. A lawyer can help you address all of these things.

Finally, when the Wills, Estates, and Succession Act, S.B.C. 2009, c. 13 comes into force (expected in late 2012), a lawyer WILL be required to prepare an International Will (discussed below).

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