WHO CAN MAKE A WILL... CONTENTS, RECOMMENDATIONS, LIMITATIONS
(The ins and outs of will making) Part II continued from December
Who may make a will?
First, the testator/testatrix must be of majority age.
Second, should one desire to make a Will, it presupposes that one knows of
the document, understands the contents and consents to the making of the will
without any pressure, constraint or threat.
As well, one must be capable in a legal sense, or rather have Testamentary
Capacity. A person with an Advisor may make a Will. A person of full age with
a tutor may make a Will, but a Court, after death, will confirm or reject the
Will, taking into account the bequests/legacies in light of the circumstances
of the making of such writing. A person with a curator cannot make a Will.
What is testamentary capacity?
In essence it is essential for a testator to:
understand the nature of the act and its effects;
understand the extent of the property for disposal;
comprehend and appreciate the claims to which he ought to give effect;
not suffer any disorder of the mind that should poison his affections, pervert
his sense of right or prevent the exercise of his natural faculties.
What are the usual contents of a will?
Respecting the contents of a Will, one may include the following provisions:
REVOCATION CLAUSE: One should expressly revoke all prior Wills;
FUNERAL CLAUSE: One may specify how one's funeral should be carried out;
EXECUTOR CLAUSE: One may (and should) name a (Testamentary) Executor. (In Quebec,
an executor/ executrix is now called a Liquidator). Consider if the potential
appointee has demonstrated stability, principle, common sense, sound judgment
and some financial know-how. Indeed, one must implicitly trust one's future
executor(-trix)/liquidator. It is also suggested that one names an alternative
if the person(s) as the first choice does/do predecease, or is/are unable or
unwilling to so act;
BEQUESTS/LEGACIES CLAUSES: Consider at the outset the extent of one's future
estate and then detail the desired specific items to certain people (preferably)
while employing proportions and not values;
TRUST CLAUSE: One may establish a trust for the benefit of one (1) or more of
one's beneficiaries/legatees. A typical Trust would provide for all or part
of one's estate being held in trust and administered for one's minor children.
TUTOR/GUARDIAN CLAUSE: One can designate a person to become a tutor/guardian
for one's minor children, this in the event both natural parents die before
the minor child(-ren) come of age;
DISASTER CLAUSE: One may specify a charity, etc. if there are no beneficiaries/legatees
ORGANS/BODY CLAUSE: One may give one's organs for transplant or for science,
etc.; (However, it is best to include this in an additional card/letter/etc.
carried on your person and available immediately upon your death.
ARE THERE LIMITATIONS OF WHAT MAY BE DONE IN A WILL?
Yes, indeed, there are limitations as to what a testator/testatrix may do in
a Will, as for example:
one cannot require an heir to do something illegal erimmerex (? I could not
read it) in order to inherit;
one cannot limit the right of the surviving spouse to remarry;
you cannot to an owner or doctor of a health or social services establishment
caring for you.
Say what you mean/choose your words carefully: State your intentions. Get to
the point. Brevity is advisable inasmuch as extra words, may give rise to confusion.
Refer to people by their name PLUS their relationship.
Name alternative heirs.
Make a written inventory.
Include maintenance of dependents.
Consider the possibility of challenge: Even if a Will was made, there still
could be problems and it could be challenged-contested, as for example in the
case of ambiguity in language as aforesaid.
Consideration must be given to a marriage contract and your inservant (? I could
not read it) policies. Your advisor can help with these items.
Mention should also be made of the Act of Death. It is very much needed as
the decease of the testator/testatrix is the event which renders the Will in
force and does open an estate/ succession. This Declaration is completed and
signed by the mate of the deceased or a family member or in the absence of same,
then by any other interested person. This Declaration is made before a witness
and is a form to provide information not only surrounding the death, but also
details respecting the deceased's parents, birth, marriage and his last address.
With this information, the Registrar Of Civil Status prepares an Act Of Death;
and one may thereafter obtain a copy thereof from the "Direction de l'Etat
Civil", in Montreal or Quebec City.
Little thought now may be hurtful to your loved ones afterwards. If one has
specific desires respecting any of the matters hereinabove mentioned, think
long and hard and then make a Will, and INDEED PLEASE DO IT NOW!!!
CAUTION/DISCLAIMER: The foregoing article is only for informational purposes
and is not meant as legal advice. Seek out legal counsel for your particular
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© 2005 Practitioners’ Press Inc./ TM Practitioners’ Press Inc.