"Advice Following the Signature of Your Will"
1. Storing Your Will
Your Will should be stored in a safe location, and in a place where it can be found after your death. We recommend that you store your Will outside of your home in a place with some fire protection, such as in a safety deposit box, or in our Wills safe. We also recommend that you then keep a copy of your Will in your home, in the place where you normally store your important papers, and that you mark on the copy of the Will where the original is located. If you are storing your Will in a safety deposit box, you might also want to keep a note with the copy of your Will as to where the key to the box is located.
2. Keeping an Inventory of Assets with your Will
It is a good idea to keep a reasonably current listing of assets with your Will, so that your Executor (or alternative Executor) will know the full extent of your assets, and where to find them. If you are a shareholder in a private corporation, you should also indicate where the minute books are located, and whether there is any buy-sell agreement in place which is triggered by your death. If you are a partner in a partnership, you should indicate where a copy of the partnership agreement can be found, and what your estate is entitled to receive from the partnership on your death.
3. Making a List of Gifted Personal Items
Many people like to make a list giving away personal items, and want to be able to change this list from time to time without having to come back to see their lawyer.
There are two different ways you can do this. One is binding on the estate; the other is not. First, if you are not concerned about whether the list is binding on the estate (as you trust your family to carry out your wishes), then you can make the list however you see fit. You can type a list, write it out, put tape on the back of items…you can do whatever you want. Since these types of informal lists in most cases are not binding on the estate, they are only recommended where the personal items have sentimental value, and no real monetary value.
To make your list binding on the estate, you must complete it so that it complies with the formalities of The Wills Act, and qualifies as a codicil to your will (a codicil is a document which is an addition to your will and is read as part of your will.)
There are two ways to make a list which qualifies as a codicil. The first (and simplest) way is to make a list which is entirely in your handwriting, is signed by you, and makes some references to being part of your will or effective on your death. It should also be dates by you, so that the court will know whether it was made before or after your formal Will (lists made before your formal Will will be revoked by that Will.) A holograph codicil might look something like this:
June 17, 2010
This is an addition to my Will of May 10, 2010
Direct my Executor to give the following items to the following persons:
• My silver spoon collection to my daughter Jennifer
• My jewellery to my granddaughter, Pam
• My antique desk to my son, William
Signed
Rita Smith
The key element to qualifying as a holograph codicil is that must be entirely in your handwriting. It cannot be typewritten, and it cannot be written out by someone else.
If the document is not entirely in your handwriting, then in order for it to be a binding codicil, it must be witnessed by two people who are not receiving any gifts under the codicil (and preferably, are not receiving any gifts under the formal Will as well), and who are not spouses of anyone receiving a gift under the codicil (or Will). You and both witnesses should all be present in the same room at the same time, and must all see each other sign. Please remember that we have to make reasonable attempt to locate at least one of the witnesses after your death, so the witnesses should be people who can be easily located.
Following completion, your list should then be stored with your original Will.
4. Making changes to Your Will
Any changes to your Will must comply with the requirements of The Wills Act, or they will not be valid. If, for example, you merely strike out a gift to one of the beneficiaries and write in a different gift, the court will ignore these changes because they have not been made in compliance with the Act.
It is our preference, as your lawyer, that you come back into our office to make any changes so that we can make certain that your intentions are properly worded and carried out. There are often unexpected consequences to changes, for which you may need legal advice. If it is not possible for you to see us, you can make changes to your Will by making a holograph codicil or formally witnessed codicil, as described above.
In Saskatchewan, you can make changes directly on your formal Will so long as they are entirely in your handwriting, and so long as each change is initialed or signed by you. Each such change should also be dated. The court considers these types of changes to qualify as holograph changes.
Holograph changes or codicils are not valid in every province and every country. If you have assets (in particular, land or real estate) in another province or country, then you will want to make certain that any changes to your Will, which affect that land or real estate, will also be valid in that other province or country.
5. Revoking Your Will
Your Will can (or will) be revoked as follows:
- By making a new Will which gives away all of your assets.
- By making a new Will or other piece of writing which is in holograph form or properly witnessed which contains a statement revoking your previous Will.
- By destroying your Will or by tearing off the signature from your Will, with the intention of revoking it. Accidental destruction will not revoke your will, although it may cause problems in proving its contents.
- By marrying after you have made your Will (unless the Will contains a declaration that it is made in contemplation of your marriage to your specifically names new spouse).
Once your Will has been revoked, it cannot be revived except in very limited circumstances. For example, if you make Will #1, revoke it by making Will #2, and then destroy Will #2, in most circumstances you will be held to have died without a will, even if Will #1 still exists in its original form.
6. Separation and Divorce
Separation will not revoke your Will. If you have separated from your spouse, and have a Will in effect which gives some or all of your estate to your separated spouse, those gifts will continue to remain in effect should you die before making a new Will (subject to any agreement made by your spouse in a separation agreement to give up all rights to your estate).
Divorce also does not revoke your Will. In Saskatchewan, if you become divorced or your marriage is nullified after the making of your Will, your Will remains effective, but is read as if your divorced spouse had died before you (unless a contrary intention is shown in your Will that your spouse is still intended to receive the gift). This means that your spouse will not be entitled to act as Executor, and will not be entitled to receive any gifts under the Will. Those people who have been named as alternative beneficiaries will instead receive your assets.
7. Reviewing Your Will
We recommend that you review your Will every seven to ten years to make certain that it still meets your needs.
First, if you have set up any trust or distributions for your children, you will want to review whether the trusts are still necessary, and whether you are still satisfied with the age of distribution to your children.
As you age and acquire more assets, you might also want to consider whether you want to make any charitable gifts. Because charitable gifts receive special tax treatment, it may be that you can make these gifts without substantially reducing the gifts to others, because your estate will be paying less in taxes. This will depend, however, on the nature of your assets and the amount of tax your estate would otherwise pay.
Next, you will want to look at any specific gifts of particular assets; for example, the gift of a specific bank account to a particular person. If this bank account no longer exists, then in most cases the gift can no longer be made, because the asset is no longer there to give. In Saskatchewan, however, a special exemption exists for gifts of real estate. If you make a specific gift of land or other real property to a beneficiary, and then sell or grant an option to sell that same real property, then subject to a contrary intention shown in your Will, your beneficiary will be entitled to receive what remains owing on the sale of your real property or to receive the sale proceeds if the option is exercised after your death. This rule regarding real property, however, may not apply in every province or other countries.
Finally, you will want to check to see if at least one of your witnesses is still alive and readily available. As a general rule, at least one of the witnesses to your will (and any non-holograph codicils) has to be located after your death, to swear an affidavit regarding execution of your Will and any such codicils.
8. Jointly Held Property With Children
Increasingly, clients are asking us to transfer their assets into joint names with their children so as to simplify the administration of their assets and to save the probate fees. As a general rule, we do not recommend transferring assets into joint names with your children, as this can have unexpected legal consequences. You have essentially made an immediate gift of these assets you unexpected legal consequences. You have essentially made an immediate gift of these assets to your children, and given them certain legal rights to deal with these assets. For example, a joint bank account with your child may allow full access to those funds, with or without your consent. In the case of land or real estate, you will not be able to deal with property without the joint owner’s consent. What happens if you child goes bankrupt or gets a divorce and someone claims an interest in your jointly held assets? These, and other issues, make it unwise to transfer assets into joint names with children, without careful consideration and legal advice. In addition, recent case law and bank practices often require probate even if real property is jointly held.
9. Storage of Your Files
While we will keep your original Will in our safe until you die or ask for its return, we may not always keep your file materials for as long a time.
It is currently our general policy to keep our closed Will files indefinitely. We do, however, destroy our other closed files on a regular basis, and your file might be inadvertently destroyed in that process. If you have taken your original Will from our office, and it has been more than seven years since you last made your Will, we may no longer have a copy of your Will in our closed files.
10. Revoking Wills
The Law sometimes revokes your Will or parts of it when there are changes in your circumstances:
1. If you marry after date of the Will, the Will is void unless made in contemplation of marriage. If you divorce, the gifts to your former spouse are void, and Will is read as though your former spouse predeceased you, unless your Will expresses a different intention.
2. Making a new Will revokes the previous Will.
3. Destroying your Will revokes it.
11. A Final Word of Caution
There are well over 400 years of court decisions affecting the making of wills. The legislation itself changes from time to time. The law of wills and estates also varies from province to province and country to country. This publication is intended to give you some general advice on some of the most common issues. You are advised to consult your lawyer from time to time for specific advice regarding your Will and your estate planning.
