Tag Archives: wills

ILN Today Post

UPDATE ON VIRTUAL WITNESSING OF WILLS AND POWERS OF ATTORNEY: SIGNING IN COUNTERPARTS NOW TEMPORARILY PERMITTED IN ONTARIO

As discussed in our last article, on April 7, 2020 The Lieutenant Governor in Council made an order under s.7.0.2(4) of the Emergency Management and Civil Protection Act (the “Order“), to temporarily permit virtual execution of Wills and Powers of Attorney through audio-visual communication technology during the COVID-19 emergency. Read the full article.

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Attention Farmers

A recent statutory instrument came into effect on the 21st November 2017, which alters the way single farm entitlements are distributed in wills.

Previously, single farm entitlements could be directly passed onto specific beneficiaries in a will. If the will was silent on the issue, then the single farm entitlements fell into the residuary estate and passed to the residuary beneficiaries in the will.

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Does the Crown get your cash if you die without a Will?

Ever wondered what happens if you die without a Will? Do your assets end up with your spouse, your children, or somewhere else? We often hear people say that the State gets your assets if you die without a Will. Thankfully that is not that case in most situations, with each State and Territory having a set of laws (generally called intestacy laws) dealing with the circumstance.

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ILN Today Post

The best Christmas present for your family: a discretionary trust?

This article is taken from Helena Luckhurst’s blog The Wealth Lawyer UK.

It’s beginning to look a lot like Christmas out there, as Bing says. Thoughts turn to what gifts to give our family. When it comes to making big gifts to family members, though, in lifetime or on death, still not enough people think of using a trust.

Many people hardly know what a trust is; still less understand what a trust can do for their family. Discretionary trusts (or, to be precise, their trustees) can be taxed without reference to the personal tax positions of the beneficiaries and, if desired, that of the person(s) funding the trust. The fact that trusts are taxable in their own right can be very useful for family tax planning.

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ILN Today Post

Beware of traps with multiple wills

Many high-net-worth Ontarians have two wills to avoid paying high probate fees, but there are pitfalls to the practice, Toronto wills and estates lawyer Mary Wahbi tells AdvocateDaily.com.

“A lawyer has to be cautious when preparing these documents because errors can be disastrous,” says Wahbi, partner with Fogler Rubinoff LLP, a full-service firm with offices in Toronto and Ottawa. “There’s no cost savings if you have to go to court for an interpretation or rectification of the wills.”

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Ambiguous Wills and Evidence

Recent case law re-iterates the requirements for the admissibility of extrinsic evidence to determine the intention of the deceased where there is ambiguity in a will.

Background

The making of a will is an important legal task but unfortunately it can often be left to the last minute, approached with haste and without due consideration. The primary purpose of a will is a definitive statement regarding the distribution of a person’s assets on their death. It therefore needs to be clear, concise, definitive and unambiguous.

The legal personal representative is obliged to administer the estate, in accordance with the terms of the will. Where terms are ambiguous court intervention may be required.

When a court is asked to intervene in the interpretation of specific clause(s) in a will, the primary duty of the court is to give effect to the intention of the testator as can be ascertained from the terms of the will. The will is often read as a whole so therefore the general intention overrides the particular one. There is great distinction however between rewriting a will, which a court cannot do, and making alterations, which they can do, so as to ensure the will is consistent with the testator’s intention.

The legislation

Where there is an ambiguity in a will and extrinsic (external) evidence will assist in the construction of the will and show the deceased’s intention, Section 90 of the Succession Act 1965 is used as a guide. Section 90 sets out in what circumstances extrinsic evidence is admissible. If a will cannot be construed from its own meaning then outside evidence can be adduced, but only if:-

a) There is a contradiction or an ambiguity in the will
b) Its admission will assist in gleaning the intention of the deceased and assist in the construction of the will.

Case Law

Wills should be clear and definitive. Examples of bequests which have been held to be void for uncertainty include a bequest of “some of my best linen”, and “a handsome gratuity to be given”. These bequests all lacked substance and certainty.

In the case of Bennett v Bennett the deceased gave his farm to his wife for life, with the remainder to his nephew “Denis Bennett”. The deceased had no nephew called Denis Bennett, but did have a brother named Denis, and a nephew named William Bennett. In this case extrinsic evidence was admissible to show that William Bennett was the intended beneficiary.

A recent case involving a home-made will of Dr. John O’ Donoghue was so entirely devoid of certainty, that the entire will failed resulting in an intestacy (where the deceased is treated as having made no will and legislation, the intestacy rules, are applied to distribute any estate). The court viewed the will as the perfect illustration of how a person should not make a will. The will was perfectly valid in its execution, but the terms of the will were utterly unclear and incapable of interpretation.

The terms of the will were as follows:-

I leave all my worldly possessions to Josie O’ Donoghue, my mother, to be divided equally and fairly between my family, with special care (&) extra help to be given to Mary O’ Donoghue, my sister. Also gifts of money to be given to Olivia (&) family & Marian O’Brien. Smaller gifts to Downey, Ethel, Sheila & Pat O’ Brien Laurie Johnston, Ellen Wingard, Deirdre O’ Dongohue.

As the will failed all of the named beneficiaries failed to inherit anything! This startling outcome reinforces that a will must be clearly and unambiguously drafted.

In the matter of the will of Evelyn Tomlinson, a specific bequest was made in the will to the National Society of the Prevention of Cruelty of Animals (Dogs and Cats Home), 1 Grand Canal, Quay, Dublin. However there was no such entity in existence. There were however two bodies, namely the Dublin Society for the Prevention of Cruelty to Animals and the Irish Society for the Prevention of Cruelty to Animals. The court allowed the admissibility of extrinsic evidence as a clear ambiguity existed and there was a legitimate dispute as to the meaning of the effect of the language used in the will. Extrinsic evidence showed that the deceased subscribed to the Dublin Society, and the Dublin Society owned the premises at 1 Grand Canal Quay, and operated the Dogs and Cats Home from that premises, before it moved elsewhere. On the balance of probabilities, the court leaned towards the Dublin Society for the prevention of Cruelty to Animals as the intended beneficiary.

Recent Case Law

In the case of Maureen Black v Anne Sullivan Centre Ltd, Our Lady’s Hospice and Family Solidarity Ltd (2016) the deceased in her will left an apartment at 41 Block C, Sydney Parade Avenue, Sandymount, Dublin 4 to:-

Rosemary Black (daughter of my niece Maureen Black of 51 Beechpark Ave, Castleknock, Dublin 15).

The difficulty arose as Maureen Black had no daughter Rosemary Black. She did have a daughter named Barbara Black and indeed that name was used in further sections of the will, not related to this specific bequest. Extrinsic evidence was admissible to show that Barbara Black had spent considerable time in the company of the deceased, and had built up a strong rapport and relationship with the deceased over many years and that she was the intended beneficiary.

Had the bequest failed to take effect, then it would have fallen into the residue of the estate and benefited the charitable recipients of the residuary estate. Clearly this was not the intent of the deceased, in that she wished to benefit one of the daughters of Maureen Black, and external evidence was admissible to explain the ambiguity and to clarify the intention of the deceased.

Summary

There is clear case-law to suggest courts lean towards testacy (applying the terms of a will), but not so far as to rewrite a will. Clearly it is advisable to be clear, definitive in the terms of your will, and to use plain and simple language. When describing assets and beneficiaries it is better to over-emphasise their description. In describing a beneficiary such as niece or nephew it is best to state the name and then the relationship with the brother or sister of the deceased, for example: Joe Bloggs (son of my brother David Bloggs) – lest there are more than one nephews by that name.

Applications for extrinsic evidence to be considered have cost implications for the estate so it is prudent to ensure the will is correct and unambiguous in the first instance so that such applications are unnecessary.

The post Ambiguous Wills and Evidence appeared first on Holmes O’Malley Sexton Solicitors.

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‘Toxic’ survivorship clauses: does your Will contain one?

 

Do you have a survivorship clause in your Will?  Chances are you do, if you leave assets to someone outright in your Will.  The mischief that these clauses are designed to avoid is this.  If A gives a gift to B in his Will and B dies the day after A, B’s estate will get the gift and it will be B’s Will that decides where A’s gift ends up.  However, in these circumstances, A may have wanted someone else to get the gift instead (A may not like B’s choice of heirs!).  Survivorship clauses are meant to solve this problem.  They also prevent the delay associated with the same money being administered through two separate estates and can reduce the total Inheritance Tax bill on both estates. 
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ILN Today Post

Intestancy in Panamanian Law: Procedure before the Courts of Justice

Any person who at the time of his/her demise leaves certain rights and obligations that are part of their patrimony and are susceptible to be transferred, by a will or without a will. Article 628 of the Civil Code patrio defines inheritance as a transfers the assets and liability rights that conforms the inheritance of a deceased person to the surviving person, to whom the Law or the testator summons to receive it. The heir will be considered the person who succeeds as universal heir and legatee the person who inherits a specific asset.

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Richard Weiland interviewed by CBC Radio

On the subject of musician Prince dying without a will, Richard Weiland was interviewed by All In a Day on CBC Radio in Ottawa yesterday on the matter of dying intestacy (without a will). In the interview, Richard states that “if they die with a surviving spouse and young children, the estate is divided between the spouse and the young children but children under the age of 19 can’t hold assets in their own name”, in that case, their share gets paid to the Public Guardian & Trustee, who then holds their share for them until they turn 19.

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To keep or not to keep Wills with Nil Rate Band trusts?

Chances are, if you’re British, married and have a professionally drawn Will which predates 2008, you may have a discretionary trust of the Inheritance Tax Nil Rate Band (NRB) in it.  It is often called something like the ‘Legacy Fund’ and, while the exact words may differ, the Will usually provides for a gift of the NRB (currently £325,000 if fully available) to trustees to hold on discretionary trusts for the benefit of the surviving spouse and children.

Having any trust in a Will needs careful thought.  Will trusts add complexity and usually cost something to run after a death occurs.  It is always much simpler for married couples to leave everything to the surviving spouse outright in their Wills, if that is what is desired.  So it’s important to be clear, if you have a NRB trust in your Will, what benefit it may bring your heirs.NRB Will trusts were the product of the bad old days, pre October 2007, when there was no Transferable Nil Rate Band (TNRB) for married couples (including civil partners). 

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