General Will Provisions

There is no single or standard form of Will which will apply to all situations. Individuals differ, their beneficiaries differ, and their Wills differ. However, the basic objective of all Wills is the same - to distribute the deceased’s assets among his chosen beneficiaries on the terms outlined in the will.

Testator's Identity

The will should begin by identifying the document as the Last Will and Testament of the particular testator. If the testator uses, or is known by more than one name, all such aliases should be included; in order to reduce the possibility of mistaken identity. It is good practice to refer to the place of residence and the occupation of the testator. If the testator does not have an occupation, generally his or her marital status is inserted. Such details help identify the person and provide evidence of his place of residence and domicile.

Revocation of Prior Wills and Codicils

The second clause of the Will generally revokes all previous wills and testamentary depositions. In certain situations, for example where the testator owns property in more than one jurisdiction, it may be desirable for him to have a separate Will appointing executors for the purpose of governing the disposition of property in each jurisdiction. In such cases care should be taken to ensure that the retraction clause does not inadvertently revoke a Will that should not be revoked.

Appointment of Executors and Trustees

The testator should appoint a person or persons, individuals or corporate, to administer his estate. If individuals are appointed, it is prudent to name substitute executors to act in the event one or more of the named executors should predecease the testator or should survive the testator but die before the administration of the estate has been completed or is unwilling or unable to act or to continue as an executor.

Disposition of Assets Controlled by the Trustee

After identifying the testator, revoking previous testamentary dispositions and appointing executors and trustees, it is usual for all the property of the testator to be given to the trustees and held by them on the trusts set forth in the remainder of the Will.

Funeral Directions and Disposition of Body

The testator should, prior to his/her death, advice family and an executor of his/her wishes regarding the disposition of his/her body upon death. Instructions regarding the funeral and the appropriate forms in regards to donations to science are addressed.

Real Property

If he or she owns real estate, the testator should provide a clause about how he wishes to divide his property such as an Outright Bequest to Wife:
“To transfer and convey whatever houses and properties I may own be using as a home or summer home at the time of my death to my wife, if she should survive me for a period of thirty days, for her own use absolutely.”

Power to Pay Expenses and Death Taxes: Duty Exoneration Provision

No particular direction is required in the Will with respect to the payment of income tax or other debts. Income Tax imposed under the Income Tax Act of Canada, whether owing at the date of the testator’s death or arising as a result of the death of the testator is a debt payable out of the estate of the deceased taxpayer before any amount is distributed to the beneficiaries.

Legacies to Individuals

The testator may wish to pay a legacy to certain individuals. A legacy is defined as a gift by will of personal property or money. For example, a clause could state to pay the following legacies:

To…….., if he/she survives me, the sum of $.......
To…….., the sum of $....... if he/she should be living at my death, or if he/she should then be dead, to divide the said sum among his/her issue then alive in equal shares
To each grandchild of mine who survives me the sum of $............, and I authorize my Trustees to pay the said legacy to such grandchildren when he or she shall attain the age of majority, or at such earlier time as my Trustees in their absolute discretion consider advisable, and to accept the receipt of such grandchild as a sufficient discharge therefore, not withstanding that he or she is under the age of majority

With respect to Gifts to Beneficiaries, it is important to be mindful of provisions of the Family Law Act [Ontario] which states:
“No Gift under my Last Will and Testament shall be assigned or anticipated or fall into any community of property or partnership which may exist between any beneficiary and his or her spouse and every such gift shall remain the separate property of the beneficiary hereunder, free from al material rights or controls of his or her spouse”.
In particular, the value of all income from property or from such property that can be traced, passing to a beneficiary who was married at the time of their death under the provisions of their Last Will and Testament, shall be excluded from such beneficiary’s net family property within the meaning of the Family Law Act as amended from time to time, for all purposes of the said Act. For example, you can have an express statement within the meaning of Section 4(2)2 of the Family Law Act, 1986 as follows:
“It is my hope that my beneficiaries will share in such manner as may be appropriate with their spouses but wish to ensure that such sharing is always voluntary and not mandatorily imposed upon them through the operation of law.”

Bequests to Charity

In circumstances where the testator may wish to leave money to his favorite charity (i.e. The War Amputations of Canada) such a gift should be explicitly set out in the Will.

Residue of Estate

There should be a provision dealing with the residue of the estate. There are countless forms of testamentary dispositions dealing with the residual portion of a testator’s estate.

Granting of Power to Executor to Sell and Retain Assets at his Discretion

An executor is required to convert all assets under his control into investments authorized by law for trustees as soon as possible after death unless the Will specifically authorizes the executor to retain non-authorized investments. It is generally desirable to authorize the executor to retain non-authorized investments, whether or not the executor is authorized to re-invest in non-authorized investments, in order to prevent a forced sale of assets at an inopportune time. If the assets included business assets, the executors should be expressly authorized to deal with such assets.

Granting of Investment Powers to an Executor

The testator is entitled by his Will to give direction to his executors regarding investments. In the event the Will is silent, the executors are limited to investing the assets of the estate in investments prescribed by various provincial Trustee Acts which govern this aspect of the Will. The testator can free his trustee from any and all restrictions, if he wishes, by including an appropriate clause in his Will. The extent of authority given generally depends on the ability of the particular trustee and testator’s faith in him. If possible it is generally most satisfactory to choose a trustee who can be relied upon to invest wisely and then give them an unrestricted power to invest.