Whether it be an unforeseen circumstance or the final stages of an illness, it is unfortunately quite common that an individual may find themselves at death’s door without a last Will and testament. This can have significant consequences as their last wishes may not be properly recorded and those they wish to benefit from their life’s work may not receive anything after their passing. It is always recommended to work with a professional to implement an estate plan to ensure such a circumstance does not arise, but this article will shed light on the options available to someone who finds themselves in this unfortunate predicament.
If an individual finds themselves short on time to establish a proper estate plan, there are three options available:
- Hire a Lawyer Anyways.
Time permitting, you may contact an estate planning lawyer and request they attend to the hospital or care facility where the adult is residing. The lawyer will be able to complete the necessary legal steps to ensure a last Will and testament is prepared in accordance with the law. This includes completing a capacity assessment to ensure the adult has the legal capacity to create a last Will, assess the assets and liabilities of the adult, record the wishes of the adult, prepare the last Will, and sign and witness the last Will in accordance with the formal signing requirements under provincial legislation.
If there is not enough time to prepare a formal legal document, communicating your last wishes to your lawyer in any written manner may be acceptable considering section 58 of the Wills, Estate and Succession Act (“WESA”). Section 58 of WESA allows a court to correct a testamentary ‘record’ (record meaning data that is recorded or stored electronically, can be read by a person, and is capable of reproduction in a visible form) and confirm the record represents the last wishes of the adult. This would not create a formal, recognized last Will of the adult, but it may be possible to have the record cured under a section 58 application, subject to the material facts of the case, but may be better than nothing.
- Prepare a Last Will on your own
The individual may prefer to express their last wishes in their own handwriting. As mentioned above, there are very formal signing requirements when it comes to executing a last Will, but should one of these formalities be missed by the adult, a section 58 may correct it. The important elements of a hand drafted Will include:
A. A clear title, such as “LAST WILL OF <WILL-MAKER NAME>”;
B. An opening sentence identifying the document, such as:
This is the Last Will and Testament of me,<WILL-MAKER NAME>, of <Address>.
C. Revocation language such as, “I revoke all my previous Wills and codicils” to indicate this is your last Will;
D. An attestation clause before the signature blocks of the Will-maker and the two witnesses, such as:
IN WITNESS WHEREOF I have to this my Last Will and Testament written upon this and the <number> (<#>) preceding pages of paper, subscribed my name this _____ day of _______________, 20__.
We were both present, at the request of,<WILL-MAKER NAME> and we were both 19 years of age or older, when he/she signed this Will. We then signed as witnesses in his/her presence and in the presence of each other.
E. Signing the Will in the presence of two, neutral third-party witnesses, who are not related to the Will-maker and who are not a beneficiary under the Will, or a spouse of a beneficiary of the Will. Each party initials the bottom right corner of each page and signs at the end of the Will. The witnesses and the Will-maker must all be in the presence of each other when signing.
A recent example of a handwritten Will being deemed the last Will of the deceased was in Re Clarke Estate, 2023 BCSC 103. The court found a handwritten Will which was only witnessed by one friend to still be the true, final last Will of the deceased because the deceased intended to create the document, had knowledge of precise contents of document, intended it to be her Will, and was aware of significance of what she was doing. Therefore, while it is not recommended to try and tackle the preparation and execution of a last Will on your own without professional advice, it is possible to try and capture your intentions if you have run out of options at the end of your life.
- Take no action and allow the laws of intestacy take over
The laws of intestacy are set out in WESA and create a hierarchy of default beneficiaries of an estate if an individual passes away without a last Will. This hierarchy depends on the family members of the deceased alive at the time of their death. For example, if the deceased passes away with a surviving spouse and children, their estate will be distributed between these individuals in specific portions as set by WESA. If there are no spouse or children, the next family members in the hierarchy will be the parents of the deceased, and if no parents, then the deceased’s siblings and so on. Therefore, depending on the family circumstances of the individual and their last wishes, if time is running out, the individual’s wishes may still be fulfilled by the default rules of intestacy. However, it is extremely important to properly analyze the intestacy laws and the family dynamic of individual to determine whether taking no action is appropriate. Often times, taking no action is forced upon the individual due to unforeseen circumstances, a lack of capacity, or a sudden passing.
No matter how quickly you require assistance with the development of an estate plan, please reach out to any member of our estate planning team who would be pleased to help.