Revised July, 2001

Bulletin 1.1 - Questions and Background regarding Wills

What is a Will?

A Will is a legal document, which must conform to the laws of the maker's place of residence (e.g. the Province of B.C.) and which takes effect only upon the maker's death. (This means it can be changed any time and as many times as desired by the maker before death. However any such changes must be made by either a new will or a properly signed document called a Codicil). The Will can also be revoked by the making of a subsequent Will or by destroying it.

Why have a Will?

Without a Will there is nobody who has authority to deal with your assets, liabilities, contracts and taxes until a Court appoints an Administrator of your estate. The Administrator deals with assets, liabilities and taxes and distributes what is left to the classes of people named in the Estate Administration Act of British Columbia. With a Will you appoint an "Executor" to administer your estate.

A Will is often a convenient place to appoint a guardian for infant (under age 19) children.

Dying with a valid Will is called dying testate. Dying without a valid Will is called dying intestate (See Bulletin No. 1.6 on the Law of Intestacy).

How do I make a Will?

You can see a lawyer or do it yourself. For more information on preparing your own Will, see Bulletin No. 1.3 "The Wills Kit".

If you see a lawyer, see one who practices in the area of Wills, estates and trusts. Many lawyers either do not practice in these areas or do not give priority to Wills.

What does the Lawyer do?

First, the lawyer gets the facts. Many people do not realize that often the most difficult, time consuming, and expensive part of the lawyer's job is to get the facts from his or her client.

At Aydin Bird, we like to use a "Wills Questionnaire" which asks the questions the lawyer needs to know before preparing a Will. If these questions are not asked and answered, the lawyer is "flying blind" and should not prepare the Will.

The Wills Questionnaire contains three parts:

Part I - Personal Information, requiring full names, ages, addresses and relationships to be disclosed.

Part II - Financial Information, requiring general information about assets and liabilities - types of assets, approximate values, location and registration of assets.

Part III - Will Instructions - Sometimes this part works and sometimes it doesn't. Parts I and II are essential, Part III is optional.

The Wills Questionnaire usually saves a one hour meeting and if Part III is completed then often provides us with enough information to create a "first draft" of your Will. We may also comment on additional matters arising from our review of the Wills Questionnaire such as life insurance, RRSP's and RRIF's, registration of assets in joint names, minimization of Probate Fees and Capital Gains taxes. These items may lead to the more detailed area of "estate planning" (see Bulletin 1.5 - What is Estate Planning").

If your situation is straight forward, the "first draft Will" is normally sent to you (often with marginal notations and high-lights) and you are asked to telephone or meet with your lawyer with your questions and comments. At this point changes can usually be settled and the final Will prepared. We will then ask you to meet in our office to review and sign the final Will.

After signing the Will, you must decide where you want to keep the original. This should be either in a safety deposit box or in our fireproof vault. Aydin Bird will store your Will without charge. Your executor should be notified that he or she is named as executor and where the Will is kept. The Wills Questionnaire, which remains in our file, provides valuable information for the executor but you should also maintain a detailed inventory of your assets and liabilities in a place where the executor can find it. (Click here for Testators Inventory of Assets and Liabilities). If you leave British Columbia and you have no assets remaining in British Columbia, you should take the Will with you to the Province or country where you will be living. The B.C. Will may be effective in your new place of residence but it should be reviewed by a local lawyer.

The contents of the Will remain confidential to you alone. A Wills Notice, which indicates only the date of the Will and where the original is located, should be filed with the provincial Department of Vital Statistics. There is no public filing of a Will during your lifetime. A search of the Wills registry is normally required on the death of a person, and is useful for locating the most recent Will and is required as a part of the Probate or Administration application.

J.H. Rocke Robertson
Direct Line: +1 (604) 267-2814
E-mail: robertson@aydinco.com