Fulfilling Requirements of Attested or Formal Will
Canada has a federal government system subdivided into federal and provincial governments with various powers over certain legal jurisdictions. The Ontarian law understands four types of wills that include a formal or attested will, the privileged will, the Holograph will, and the International will (Garb & Wood, 2010). The will of Peter Cross is the formal or the attested will.
Revocation of Past Wills
One of the most important clauses of the given will is Revocation of the Will. The Canadian and Ontarian legal principles under the common law allow testators to revoke or cancel a will when they deem it appropriate (Garb & Wood, 2010). The testator revokes the will in accordance with legal stipulations governing the writing of the will and testamentary trusts. Through formal writing, the revocation statement appears in the current will with the signature of two witnesses, who sign and witness the revocation.
Mentioning of Trustees
The common law of Canada and the Ontarian provincial law has certain principles that govern the writing and execution of attested or formal wills and testamentary trusts (Garb & Wood, 2010). An important principle noticed in the provided will is the mentioning of trustees and executors of the will, who are the people entrusted with the execution of the will.
Testator’s Conditions towards Probation
A will comprises the wishes and ambitions of a testator about the succession of his or her property after death. A will may involve a probation procedure, which is a formal legal process of recognizing a will and legally appointed personal representative, trustees, or executors to oversee the will and distribute the property to the lawfully intended beneficiaries (Thompson & Solnik, 2003). The testator clearly states that whenever the law dismisses the mentioned trustees, the court process should intervene and mention the estate trustees while the will is under the process of probation.
Defining Powers of the Estate Trustees
Formal will involve clear mentioning of trustees or personal representatives to the testator and defining powers and authority over the property inheritable and the beneficiaries (Garb & Wood, 2010). In their execution of the will, the powers and obligations of estate trustees remain guided by the will itself, and therefore, it is appropriate and lawful for the testator to define explicitly the powers of the trustees (Garb & Wood, 2010). Wills must include clear stipulations of the power and authority accorded to trustees or executors.
Defining Gifts for the Trustees
Although trustees are the persons legally entrusted to execute the will and distribute properties and assets to proposed beneficiaries, the Ontario and Canadian laws dispute any illegal possession of gifts that a testator offers (Garb & Wood, 2010). Through formal writing in the will, any property is never a gift to any trustee unless the testator, who is the property owner, mentions the property in the will as a gift or inter-Vivo (Thompson & Solnik, 2003).
The Plight of Minorities in the Will
A will is a personal commitment of identifying and lawfully defining inheritors by a testator to the future intended ownership of his property. The testator must be in sound mind while writing the Will and that he or she wrote the Will without any barriers, coercion, or intimidation (Garb & Wood, 2010). Canadian legal principles require testators to mention the minor beneficiaries following the law (Thompson & Solnik, 2003). Peter Cross mentions the conditions for rewarding the minor beneficiaries through the loco parentis program as per the Ontarian and Canadian laws.
Taxation and estate inheritance
The Canadian legal principles demand that any inheritor of a privately owned property is not immune from legal taxation associated with the property. The will contain a clause that states the wishes and requests of payment of government taxes as required by the Ontario and Canadian legislation. In clause 5 (1), the testator defines how he requires the trustees to execute the will concerning taxes that apply to the inherited properties. The estate of the deceased owner must always pay taxes.
Authority over the Will
The Ontarian Superior Court of Justice has that legal mandate to control major implementation processes of the will, which include the probation process and the interpretation process (Garb & Wood, 2010). The Superior Court of Justice reassesses the appointment of trustees and verifies the formal validity of the documented will (Garb & Wood, 2010). The will contains clause 8 that recognizes the laws of the province of Ontario, which has jurisprudence over wills.
Creditors and other debts to the estate
Normally, a testator may die before settling all his debts and creditors may require such payments before the death of the property owner. The Ontarian legal principles governing estate planning and inheritance require trustees to pay debts of creditors fully before distribution of any assets to the beneficiaries (Garb & Wood, 2010). The trustees must pay the debts as soon as required by Law. As Canadian principles require of trustees about the administration of estates, Clause 5 of the will contains such consideration about creditors payments (Cross, 2013).
Lessons Learned and Recommendations
Lessons Learnt
From my personal experience and encounter with the topic of Business and Corporate Law, it is enough to concur that the paradigm of business is quite diverse. Stern (2007) postulates that whereas it may deem normal to prospect about a business or own personal property, acquiring that business or property, maintaining its continued existence, and even determining its future survival through identification of the appropriate inheritors is a lifetime quandary. On initiation, every property owner wishes to see a continued existence and survival of the property throughout several decades, even after his or her demise (Kerr & Kurtz, 2010). Numerous legal norms control business operations and even determine business survival in Canada.
Many businesses plummet and collapse just after the death of the owner owing to controversial ownerships or the inability of the relatives to decide whom to entrust business operations or even how to share the property wisely (Millard, 2006). To avoid dying in intestacy and provide an optimal source of survival for a business, writing of formal or attested wills is very imperative. Will feasibly have become a lawful means of granting inheritance (Millard, 2006). Wills are legal documents that a testator writes to accord the entrusted individuals the power and authority to implement the wishes of the property owner by sharing the properties amongst the intended beneficiaries or investing them in businesses.
In a real estate business, wills and testamentary trusts are becoming common and essential estate planning tools useful in evading the private property ownership crisis, as many privately owned estates, have elicited controversies after the demise of the owner (Kerr & Kurtz, 2010). The writing wills to secure properties is prevalent among businesses and private properties because it is an essential strategy for businesspersons to leave millions of ventures to the trusted inheritors and avoid ownership wrangles between family members (Thompson & Solnik, 2003). Wills are the best legal documents that give the appropriate inheritance of a sensitive multibillion property like real estate ventures, as they provide important existing conditions from the testator.
Wills are important as they provide direct intervention of Canadian laws and provincial legislations into the prevalence of multimillion businesses, whose collapse may negatively affect the involved families and the economy of Canada (Thompson & Solnik, 2003). In estate planning, wills are among the most essential tools of estate planning as Canadians consider the real estate business as a significant venture. During the writing of a will, testators must understand the legal principles governing property ownership and inheritance, even though it is their private property (Thompson & Solnik, 2003). Being a crucial issue, writing a will require one to seek appropriate expertise from law experts like lawyers to make it valid and legal. More importantly, a will must comply with legal provisions of a certain legal jurisdiction for it to be enforceable.
Recommendation
Having recognized the importance of having written wills to ensure the future survival of worthy ventures and distribution of properties to beneficiaries as per the wishes and ambitions of the property owner, I recommend property owners to leave wills before their demise (Kerr & Kurtz, 2010). Leaving a will secures the future of a worthy business that may continuously support families of beneficiaries through its income and in some way leverage the national economy from dwindling, especially for the multibillion businesses that boost economies.
Will do not only help in avoiding family wrangles after the demise of the property owner but are also essential for the progress of valuable businesses such as real estate corporations. Will provide means by which inheritance of private property benefits from national laws to ensure fair inheritance (Stern, 2007). In the writing of a will, it is important for property owners (testators) to seek legal advice from experienced lawyers, as one must consider the legal principles of the nation involved in the process of writing a will.
Wills are not only significant to businesspersons, who seek smooth succession of their multi-billion businesses, but also significant to small families that depend on retirement benefits as their sole source of income for their existence (Stern, 2007). Single families, which have children, must understand that will secure the future of children by guaranteeing to school, providing special treatments, and enhancing the financial sustainability of the family. Will secure the future of families through proper succession and progression of family assets and businesses.
Wills are important lifetime documents that require proper preservations while observing the legal norms applicable to writing of will and execution. Before unnecessarily duplicating wills that may attract legal issues and questions, trustees should understand proper means of handling wills to prevent revocation or unnecessary probation processes (Thompson & Solnik, 2003). In writing wills, it is important for testators to mention explicitly the people or entities entrusted to execute the will, the beneficiaries of the will, and conditions necessary for the execution of the will.
Although will have always involved the intervention of Canadian and Ontarian legal principles to ensure proper execution in accordance with the wishes of the property owners, much remains anticipated about legal processes. Approximately 90% of all written wills have managed to go through the probation process undisputed, but they later elicit controversies during their execution (Kerr & Kurtz, 2010). Since laws and policies are complex, the writing of a will is a complex affair and its interpretation and implementation are prone to myriads of controversies. Laws governing the writing of wills and their execution still require proper realignment.
The Problem Scenario in the Will Document
Mentioning of beneficiaries
While property owners have authority over their property and writing of wills is a personal obligation, a will may deem void, according to the law when testators fail to understand legal principles of writing wills (Garb & Wood, 2010). One of the most critical issues identified in the will is the uncertainty of beneficiaries. Failure to mention the beneficiaries of the will may make it void (Kerr & Kurtz, 2010). The testator in the will document mentions the trustees and executors, but deliberately fails to mention any beneficiary, making the will seem controversial and unenforceable. The testator in the document does not explicitly mention beneficiaries, as the will has not a single statement that indicates the real beneficiaries.
Lack of proper identification of beneficiaries may give estate trustees the power and authority to manipulate the will for their benefit, as no individual apart from the estate trustees has a legal mandate to execute the will (Garb & Wood, 2010). As the exact names of the beneficiaries are impractical and illegal, the courts employ principles requisite for creating testaments or wills as required by the Succession Law Reform Act (SLRA). Failure to mention beneficiaries would elicit questions about the three most important certainties that are essential for trusts or wills to meet legal requirements that are enforceable in courts (Thompson & Solnik, 2003). Certainty of intention, the certainty of wishes, and the certainty of property are questionable in a will that does not contain the names of beneficiaries.
In the last sections of the will, clauses 6 and 7, the testator continues to ignore the aspect of mentioning the beneficiaries and uses ‘any’ to refer to the undetermined beneficiaries. The testator includes a section to describe the payment process that the estate trustees would use to pay the minor beneficiaries. Generally, will benefit the beneficiaries, but when unmentioned in a will, the intervention of courts is necessary to avoid fraudulent allocation of property and other assets of a demised testator. The testator authorizes the estate trustees to make certain payments to beneficiaries, whose official names or class does not appear in the will.
Legal Corrective Measures
Any formal or attested will must be straightforward, with the testator having proper knowledge about issues concerning the selection of the trustees, clearly defining the beneficiaries, and the legal conditions governing the writing of will (Thompson & Solnik, 2003). Wills are sensitive legal documents that require proper interpretation and probation process before execution by stated trustees. The Succession Law Reform Act (SLRA) of 1990 is the foremost legal tool for determining the validity of wills in Ontario province. Garb and Wood (2010) state that for wills to be valid in Ontarian, SLRA requires testators to attain the age of the majority and to have a sound mind to ensure that the process did not happen by any form of coercion, manipulation, or incitement.
In the province of Ontario, the Superior Court of Justice of Ontario has a legal mandate over the probation and interpretation processes that are normally essential for the execution of the will (Garb & Wood, 2010). The court is normally responsible for certifying and granting estate trustees with a letter of probate before the execution of the will. The court also has the legal mandate to assess the formal validity of wills and scrutinize the appropriateness of the witnesses (Garb & Wood, 2010). Hence, since the provided will does not mention beneficiaries, the SLRA would apply certain restrictions to the execution of the will.
Lack of proper mentioning of the beneficiaries normally gives room for legal intervention and for Superior Court of Justice probation processes to examine the validity of the will. Family Act (1990) claims that the court at this stage has the mandate to examine whether the writing of will was without undue influence or the testator was under coercion while writing the will (Garb & Wood, 2010). The Superior Court of Justice must undertake a proper assessment of the written will and its owner, the mentioned trustees, and other people involved in the writing of a will or mention in the will (Garb & Wood, 2010). In case of any evidence of coercion or manipulation upon the testator in writing about will, the court dismisses the will.
The court only has the mandate to select estate trustees when not mentioned in a will document but has no legal jurisdiction to determine the successors, inheritors, or beneficiaries of a property of any testator (Garb & Wood, 2010). Since the Superior Court of Justice does not have a mandate to determine the beneficiaries of the will, judges may request an investigation into the background of the testator to examine whether the testator had a family, which the court is likely to assume to be the beneficiary (Garb & Wood, 2010). The will without the identifiable beneficiaries shall therefore remain under probation until the court processes justify the real beneficiaries of the will by considering the involvement of the testator and his or her family.
References
Cross, A. (2013). This is the Last Will and Testament. Notes, 1-7.
Garb, L., & Wood, J. (2010). International Succession. New York: Oxford University Press.
Kerr, M., & Kurtz, J. (2010). Wills and Estate Planning For Canadians for Dummies. London: John Wiley & Sons.
Millard, K. (2006). Drafting Wills, Trusts, and Other Estate Planning Documents: A Style Manual. London: Bradford Publishing Company.
Stern, W. (2007). Estate Planning Wills and Trusts: For Business Owners and Entrepreneurs. Toronto, Ontario: Entrepreneur Press.
Thompson, M., & Solnik, R. (2003). Drafting Wills in Ontario: A Lawyer’s Practical Guide. Toronto, Ontario: CCH Canadian Limited.