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Ross Macdonald

The Challenges of Drafting a Last Will and Testament

Having a properly drafted Last Will and Testament is important, and not just for the wealthy. A Will assures that the Testator’s wishes are followed, lowers the cost of administering the Estate and greatly assists the survivors. Without a Will provincial law will determine how an Estate is distributed, in accordance with set, rigid rules. 

However, there are two distinctive features of a Will that make it one of the most challenging of documents, legal or otherwise, to properly draft. 

WILLS SPEAK ONLY FROM DATE OF DEATH

Often when people think about drafting their Wills, they focus solely upon the current state of their assets and liabilities. 

What must be kept in mind is that, although the Will is drafted today, it only takes effect, it only “speaks”, from a date far off in the future (it is to be hoped), upon the death of the Testator. 

What will the assets and liabilities be at that time? In what form will they be kept? It is impossible to predict with any confidence and the Will must take that into account. It is not uncommon for a poorly drafted Will to leave a certain bank account, or certain investment, to a loved one but that asset, in that form, no longer exists at the date of death. The result is the intended beneficiary gets nothing. 

Another common mistake is failing to consider the possibility that a beneficiary may predecease the Testator. What is to happen then? Is the bequest to go to a surviving spouse? Or surviving children? 

Similar problems arise in deciding whether or not to leave a particular beneficiary a lump sum amount or a percentage of the overall Estate. Both can have problems, but there are ways to address this.

A frequent review and, if necessary, updating of a Will will help to avoid these types of problems, but changes in circumstances can happen rapidly and it is easy to procrastinate in a timely review, so careful draftsmanship is essential.

CLARIFYING THE MEANING IS NOT POSSIBLE

Once the Testator has decided, after careful consideration, how they want their Estate distributed, the issue becomes how to put those instructions into writing, clearly, precisely and taking into consideration the myriad possibilities that may exist by the time the Will “speaks”. 

In every day conversations the majority of what is said does not convey new information, but rather clarifies, explains, corrects or expands upon some earlier statement provided. That common process of clarifying and correcting is, of course, not possible in the case of a Will. The Testator will not be around to do so when the Will becomes effective. 

Precise language is essential. Many words and phrases in English are ambiguous in ways that are not readily apparent. Others may have acquired, in the context of Will interpretation, by way of hundreds of years of Judicial interpretation, a specialized meaning not common in every day language. Many statements, even though perfectly, grammatically correct, can have completely different interpretations. 

It is often said there is no such thing as a “simple” Will. Because of these pitfalls, and others, the drafting of a Will is always a complex matter, to at least some degree.