Most complete estate plans in Newfoundland & Labrador have at least three Core Instruments, namely, a Last Will and Testament, an Enduring Power of Attorney, and an Advance Health Care Directive.
A Last Will only takes effect when you pass away. It is used to gift or transfer your property to others after death.
An ancient form of instrument
Greeks and Romans made Wills, and Wills were imported into English law at the earliest stages of its development. You can still read the text of the Will made by Alfred I the Great in 885, in which, much as in a modern Will, he identifies himself and then proceeds to make gifts of land and treasure to his sons, daughters, wife, nephews and kinsmen. By making a Will you participate in a fairly ancient institution. Today, much of the common law of Wills in Newfoundland and Labrador has been codified in the Wills Act, RSNL 1990, c W-10.
A common problem with Wills is the question of whether they are valid or not. To be valid a Will has to comply with the requirements in the Act. It also has to be prepared when the testator is of sound mind and is not subject to any duress or undue influence.
Once you’ve overcome the hurdle of making sure a Will is valid, there are a number of things to consider addressing, such as:
- Executors and substitute executors;
- Funerary instructions;
- Specific gifts of particular items;
- General legacies;
- Gifts to charity;
- Property to be held long-term in trust;
- Remainder or residue provisions.
A key thing to remember when writing a will is clarity. Vague or ambiguous wording can lead to disputes. As well, many Wills include contingency heirs, in case some of your heirs pass away before you do.
In addition to a Last Will and Testament, an Enduring Power of Attorney, and an Advance Health Care Directive, some estate or succession plans might involve writing deeds to convey certain property before death, settling an inter vivos (i.e. ‘living’) trust, or incorporating or reorganizing companies.
Estate planning is primarily a legal exercise. A lawyer can help you plan and prepare your Last Will and Testament and any other estate documents.