Will Questionnaire

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Advice Following
the Signature of Your Will

"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.

There are two different ways you can do this. One is binding on the estate; the other is not. 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.

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). Please do not hesitate to contact us if you require further advice on this.

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.

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).

If there are any circumstances when you are concerned as to whether your will has been or would be revoked, or you wish to revoke your will then please do not hesitate to contact us.

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 (if any) will instead receive your assets.

7. Revieving Your Will

We recommend that you review your Will periodically 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. 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

If you have asked us to, we will keep your original Will in our safe until you die or ask for its return. However 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 where we are storing the Will. If you have taken your original Will from our office, and it has been more than seven years since you last made your Will, then your file may be destroyed and so we may no longer have a copy of your Will or your papers.

10. A Final Word of Caution

There is 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. Whilst this publication is intended to give you an overview of 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.