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Wills and Lifetime Planning

BC

This publication guides practitioners in British Columbia through taking instructions and preparing wills, powers of attorney, representation agreements, and advance directives.

2 Matter Plans

Overview

The Wills commentary addresses key considerations, including tax implications, the use of testamentary trusts, validity requirements, and dealing with assets in multiple jurisdictions. The Powers of Attorney, Representation Agreements, and Advance Directives commentary covers general and enduring powers of attorney, representation agreements, and advance directives, including guidance on execution, revocation, renunciation, and termination.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents.

The extensive Retainer Instructions ensures that all information is gathered from the client at the outset of the matter, enabling practitioners to provide accurate and appropriate advice. This supports the preparation of suitable wills or powers of attorney for single clients or complex family situations, including those with extensive or intricate asset portfolios. Precedents offer practical options for addressing blended families, digital assets, businesses, tax-efficient planning, and rights to occupy.

Precedents in this publication include:

  • Library of will precedents for a range of situations and clients;
  • Library of clauses for wills, including:
    • discretionary, Henson and disability trusts;
    • registered education savings plan and registered retirement savings plan;
    • quarantining assets, excluding beneficiaries, and burial wishes;
  • Library of attestation clauses;
  • International Will Certificate.
  • General and enduring powers of attorney;
  • Representation agreements;
  • Advance directives.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Wills (BC)
  • Folder icon Reference materials
    • Item icon AI Prompts
    • Item icon Electronic Signing and Remote Witnessing
    • Item icon Further information
  • Item icon Overview
    A will is a legal document to deal with assets and liabilities, and the custody of a minor child in the event of death. A person who dies without a will is said to die intestate, which results in the distribution of the deceased’s assets being determined primarily by applicable statutes. A valid ...

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Wills
    • Item icon To do list - Wills
    • Item icon First steps
    • Item icon Taking instructions for wills
      Instructions are taken from the testator. Instructions received from another person need to be confirmed with the client. In addition to ensuring the client’s interests are protected, it helps ensure the client has the testamentary capacity necessary for the will to be valid and has not been unduly ...

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    • Item icon Testamentary capacity
      One of the first questions to consider is whether the testator has testamentary capacity. Section 36(1)of the Wills, Estates and Succession Act 2009 provides that a person who is 16 years old or older and who is mentally capable of doing so can make a will.

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    • Item icon Client details, verification, and source of funds
    • Item icon Retainer instructions - Wills - For an individual
    • Item icon Retainer instructions - Wills - For a couple
    • Item icon Conflict of interest check
    • Item icon Costs
      Costing wills can be difficult. The extent of the work required is often not clear at the outset. While many wills are simple, the complexity of a client’s financial position or family arrangements can mean hours spent taking and confirming instructions, reviewing documents, and possibly liaising ...

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    • Item icon Initial letter to client enclosing retainer agreement
    • Item icon Retainer agreement - British Columbia
    • Item icon Scope of work - Wills
    • Item icon Letter to individual client to confirm instructions
    • Item icon Letter to spouse clients to confirm instructions
    • Folder icon If required - Advice on testamentary discretionary trusts
      • Item icon Letter to client advising on testamentary discretionary trusts
      • Item icon Enclosure - Benefits of testamentary discretionary trusts
    • Folder icon If required - Authority for wills
      • Item icon Letter to client's previous lawyer with authority for wills
      • Item icon Authority to client's previous lawyer to forward wills
    • Item icon Time and costs estimates
    • Folder icon If required - Costs disclosure update and a non-engagement letter
      • Item icon Letter to client updating costs disclosure
      • Item icon Non-engagement letter
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Confidentiality deed
        • Item icon Deed for general use
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment clause
          • Item icon Confidentiality clause for defined information - All parties
          • Item icon Confidentiality clause for defined information - One party
          • Item icon Confidentiality clause for terms of agreement - All parties
          • Item icon Confidentiality clause for terms of agreement - One party
          • Item icon Costs clause
          • Item icon Counterparts clause
          • Item icon Dispute resolution clause
          • Item icon Events beyond control clause
          • Item icon Governing law and jurisdiction clause
          • Item icon Interpretation clause
          • Item icon No assignment clause
          • Item icon Notices clause
          • Item icon Severance clause
          • Item icon Waiver clause
          • Item icon Whole agreement clause
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment clause
          • Item icon Confidentiality clause for defined information - All parties
          • Item icon Confidentiality clause for defined information - One party
          • Item icon Confidentiality clause for terms of agreement - All parties
          • Item icon Confidentiality clause for terms of agreement - One party
          • Item icon Costs clause
          • Item icon Counterparts clause
          • Item icon Dispute resolution clause
          • Item icon Events beyond control clause
          • Item icon Governing law and jurisdiction clause
          • Item icon Interpretation clause
          • Item icon No assignment clause
          • Item icon Notices clause
          • Item icon Severance clause
          • Item icon Waiver clause
          • Item icon Whole agreement clause
      • Folder icon Execution clauses
        • Item icon Execution clauses - Agreements and contracts
        • Item icon Execution clauses - Deeds
      • Folder icon Statutory declaration
        • Item icon Statutory declaration
      • Item icon Standard annexure note for documents
  • Folder icon B. Will considerations and other estate planning
    • Item icon Formal requirements
      Section 37 of the Wills, Estates and Succession Act 2009 sets out the following formal requirements of a valid will: The will must be in writing.

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    • Item icon Informal wills
      An informal will does not comply with the legislative requirements. The Supreme Court of British Columbia has the power to declare a will, document, or writing a valid will where they are satisfied that the document sets out the testator’s intentions even though the execution requirements of the ...

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    • Item icon Revocation, marriage, divorce, separation, and revival
      Revocation Sections 55 and 55.1 of the Wills, Estates and Succession Act 2009 deal with when and how a will can be revoked.

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    • Item icon Personal representative and estate trustee
      A personal representative includes an executor, an administrator, or an administrator with the will annexed. A personal representative is appointed by the testator or the court to carry out the deceased’s directions in the will and administer the deceased’s estate. An estate trustee is a person ...

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    • Item icon Burial and cremation
      Following the appointment of executors, the client often provides instructions as to burial or cremation, such as:

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    • Item icon Custody of minor children and the guardianship of a minor’s property
      Whether to include a provision appointing guardians raises difficulties. Most often the decision is made not to, as the children will go to the family best able to care for them, which is unknown at the time of making the will. The Family Court will decide in the children’s best interests if an ...

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    • Item icon Dispositions of property
      Disposition of property is an area in which true complexity can arise.

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    • Item icon Impact of the Family Law Act on will planning
      Support obligation The court may order that a child or spousal support continues after the death of the person having the duty: s 170(g) of the Family Law Act 2011. The support will be regarded as a debt of the person’s estate for the period fixed by the court.

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    • Item icon Death benefits
      Pensions The Canada Pension Plan benefits form part of an increasingly large proportion of an individual’s wealth. Unfortunately, most individuals die without ensuring the person they intend to inherit benefits receives them. The rules that apply may differ depending on whether the contributor died ...

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    • Item icon Taxes
      Various taxation implications can arise under a will. For lawyers who do not practise in this area, the best advice that can be given to a testator is for them to seek advice from their accountant or tax lawyers before the will is finalized. Seeking instruction to send a copy of the draft will to ...

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    • Item icon Intestacy
      Part 3 of the Wills, Estates and Succession Act 2009 deals with how a deceased’s assets are distributed if they do not have a will. A spouse includes common-law partners for intestacy purposes. A spouse is a person who was married to the testator or lived with the testator in a marriage-like ...

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    • Item icon Challenging the validity of a will
      To challenge a will is to question its validity rather than the fairness of its provisions. Judges cannot set aside a will simply because its provisions are unfair or the testator did not leave the estate to their descendants unless for an order made under s 60 of the Wills, Estates, and ...

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  • Folder icon C. The will
    • Folder icon Wills for individuals
      • Item icon Individual will - Client 1
      • Item icon Individual will - Client 2
    • Folder icon Wills for spouses
      • Item icon Spouse will - Client 1
      • Item icon Spouse will - Client 2
    • Folder icon Wills for blended families
      • Item icon Blended families
        For testators in second or subsequent marriages or relationships, protecting the interests of the children of the prior relationship is a common consideration. Regardless of how harmonious such blended families may be, problems can arise, as illustrated in the following scenario.

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      • Item icon Blended family will - Client 1
      • Item icon Blended family will - Client 2
    • Folder icon Wills creating testamentary discretionary trusts
      • Item icon Testamentary discretionary trusts
        A testamentary discretionary trust is simply a discretionary trust established by a will, usually to benefit family members. It is also a specific vehicle for taxation purposes. See Henson trust. A testamentary discretionary trust can be established to benefit non-family members or organizations ...

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      • Item icon Will creating testamentary discretionary trust - Client 1
      • Item icon Will creating testamentary discretionary trust - Client 2
      • Item icon Will creating multiple testamentary discretionary trusts - Client 1
      • Item icon Will creating multiple testamentary discretionary trusts - Client 2
    • Folder icon Library of clauses
      • Item icon Assets - Asset management
      • Item icon Assets - Quarantining assets from a nominated jurisdiction
      • Item icon Beneficiaries - Excluding beneficiaries - Some reasons for excluding beneficiaries
      • Item icon Beneficiaries - Separate fund for particular beneficiary - Clause to establish trust
      • Item icon Body - Burial in reserved plot
      • Item icon Body - Burial with modest funeral
      • Item icon Body - Cremation
      • Item icon Body - Funeral service location
      • Item icon Body - Medical research purposes
      • Item icon Body - Medical research purposes excluded
      • Item icon Body - Organs for donation
      • Item icon Clause creating a Henson disability trust
      • Item icon Clause establishing disability trust with trust deed annexed - Executors as trustees
      • Item icon Clause establishing disability trust with trust deed annexed - Appointing trustees
      • Item icon Clause to establish disability trust - Executors as trustees
      • Item icon Clause to establish disability trust - Executors to appoint trustees
      • Item icon Clause to leave money or property via will to pre-existing disability trust
      • Item icon Deemed disclaimer of an interest under this will
      • Item icon Digital rights - Specific bequest of digital rights
      • Item icon Divorce - Will in contemplation of divorce
      • Item icon Education trust for grandchildren
      • Item icon Gift of business to employees
      • Item icon Gift to spouse with reasons for children of previous marriage
      • Item icon Guardian - Appointment of guardian when spouse is the other parent
      • Item icon Guardian - Appointment of guardian when other parent has not survived
      • Item icon Home - Right of occupation of home
      • Item icon Hotchpot - Excluding hotchpot
      • Item icon Hotchpot - Including hotchpot
      • Item icon Lawyer - Direction for appointment of lawyers
      • Item icon Lawyer executor - Charge fees
      • Item icon Life estate
      • Item icon Life insurance used for debts
      • Item icon Monthly payment - Establish a monthly payment not an annuity
      • Item icon Option - Grant an option to purchase to a beneficiary
      • Item icon Pets - Gift of pets
      • Item icon Registered education savings plan
      • Item icon Registered retirement savings plan
      • Item icon Spouse - Definition - Spouse of a person
      • Item icon Testamentary trust intentions for beneficiaries
      • Item icon Trustee - Separate trustee for minor beneficiary
    • Folder icon Library of deeds, contracts, and codicils
      • Item icon Deed not to change will
      • Item icon Deed not to change will in favour of mortgagee
      • Item icon Mutual wills - Contract to make mutual wills
      • Item icon Codicil
    • Folder icon Library of attestation clauses
      • Item icon Blind
      • Item icon Can read but unable to write
      • Item icon Can read but unable to write or make a mark
      • Item icon Can write but unable to read
      • Item icon Unable to read but can speak and understand English and can sign
      • Item icon Unable to read or speak English but can sign
      • Item icon Unable to read or write
      • Item icon Unable to speak or read English or write
    • Folder icon Disability trust - Deed, variance, and clauses
      • Item icon Henson trust and the qualified disability trust
        Henson trust A Henson trust is a testamentary trust created by common law that a testator can set up for a dependant living with a disability to ensure the dependant does not lose the right to receive government disability benefits.

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      • Item icon Qualified disability trust deed
      • Item icon Deed of variation for qualified disability trust
      • Item icon Clause creating a Henson disability trust
      • Item icon Clause to leave money or property via will to pre-existing disability trust
      • Item icon Clause establishing disability trust with trust deed annexed - Executors as trustees
      • Item icon Clause establishing disability trust with trust deed annexed - Appointing trustees
      • Item icon Clause to establish disability trust - Executors as trustees
      • Item icon Clause to establish disability trust - Executors to appoint trustees
    • Folder icon Multi-jurisdictional estates and international wills
      • Item icon Multi-jurisdictional estates and international wills
        Multi-jurisdictional estates British Columbia residents may have property outside British Columbia and Canada, just as residents of other provinces or countries may have property in British Columbia. It may be suitable to appoint executors over the entire estate regardless of location. Grants of ...

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      • Item icon International will certificate
  • Folder icon D. Execution
    • Item icon Execution
      The testator must first declare in the presence of two witnesses and a lawyer or notary public that the document is their will and that they know its content. They must then sign each numbered page of the will or acknowledge the signatures in the presence of the two witnesses and the lawyer. The ...

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    • Item icon Letter advising client that wills are ready for signing
    • Item icon Letter reminding client that wills are ready for signing
    • Folder icon If required - Sending will to client for signing
      • Item icon Letter to client enclosing will to sign
      • Item icon Certificate of Witnesses
      • Item icon Enclosure - Instructions for signing
  • Folder icon E. Finalizing the matter
    • Item icon Storage
      If the will is kept in safe custody, enter it into the safe custody register and place it in a trackable envelope. Never kept it in the file. A copy of the will should be provided to the testator. Including the firm’s contact details on the cover sheet or in a letter enclosing the will. Inform the ...

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    • Item icon Wills Registry
    • Item icon Revising the will
      Advise testators to review their will regularly. While this may not be of great significance in the case of small estates or when the testator’s estate is to pass to their spouse then issue, it is relevant in other situations. Events that may trigger revising a will include a change in:

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    • Folder icon If required - Will not signed
      • Item icon Letter to client finalizing the matter when will not signed
    • Item icon Letter to client finalizing the matter
    • Item icon Invoice recital - Wills
    • Item icon Closing the file
    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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