Alan2005

I still don't get this about wills.

Surely the courts are there to enforce the law. The will is my wishes, not the courts. And providing there is nothing illegal in it, how can any court in a western liberal democracy overturn my wishes if they are written down explicitly on the basis that the legalese is from a different country?

JonboyE

If all you own is some real estate in joint names and a bank account in joint names then it is nothing to do with the courts. When you turn your toes up your assets automatically transfer to your OH.

However, if you have $100,000 in a savings account and your will says that it should go to the local cattery, and not your OH, then the bank will likely insist that the will is probated. I.e. the court examines the will to decide if it is a legal will. If the court concludes the will is valid they stamp it. Your executor can take this back to the bank who will keep a copy to cover their rear ends and pay the money to the cattery.

Similarly a land registry will usually not register property in the name of a beneficiary without a probated will.

AFAIK, unless someone challenges the terms of your will, this is the extent of the court's involvement.

Almost Canadian

So long as what you have stated is in accordance with the law, there is likely to be no issue. The issue arises when there is a conflict in the laws.

The legalese has little to do with it. Let's say you execute a will in BC and leave your best friend the proceeds from the sale of your English house which, at the time of your death, is rented to a family for a period of 5 years. Tell me what jurisdiction a BC court has to force the sale of house in England? I can tell you: It doesn't.

What you would have to do is to get an English Court to recognize any orders arising from the probate in BC. It is not that much of an issue, but it will be relatively expensive to pay a Canadian lawyer to contact an English solicitor, have the English solicitor explain to the Canadian lawyer what the Canadian lawyer needs to obtain in BC, so as to ensure that the English Court will grant it.

Not necessarily. Survivorship only applies in some common law jurisdictions. Don't make the mistake of assuming it applies everywhere. As I am sure you are aware, it only applies to joint tenants, it does not apply to tenants in common. Most people, even if they have bought their house before they were married, have little idea of the distinction.

Unless a dependant decides that they wish to argue that your will didn't provide sufficiently for their needs.

In Alberta, an executor that lives outside of Alberta has to provide a bond unless all of the beneficiaries waive the requirement to do so. Writing a will within Canada that seeks to distribute assets within Canada can be problematic (i.e., someone with a residence in Alberta and a vacation property in BC).

There are very few factual circumstances that will bemuse a competent wills and estates lawyer for very long. But it is completely wrong to state that a layperson can navigate such waters without legal assistance (I know this is not what you are saying).

I am not a wills and estates lawyer but, as with most legal issues in Canada, I have seen more litigation arising from such things here than I ever saw in England. Most of it arises from the fact that the Provinces cannot agree to agree on most things.

JAJ

Because every jurisdiction makes its own rules about the extent to which it will accept (or not) a will made under the law of a foreign country/state (or even another territory in the same country). And if the relevant property is in their jurisdiction then their rules are what matters.

English courts, as far as I am aware, will often accept a foreign will as valid, although it depends on circumstances. The laws in Scotland (especially) and Northern Ireland may not be the same as England and Wales.

I am not so sure that having two wills is a good idea. Normally you should have one in the place you reside (unless clearly you are only there temporarily) and if you have assets in another jurisdiction, check to see if the will is acceptable to the courts there. Only of the "other" jurisdiction will NOT accept your will as valid do you normally need to consider making a supplementary will in that jurisdiction. But be careful they do not contradict each other.

Alan2005

But why do their rules matter? If I say I want X thing to go to Y person and it's written down in black and white so that everyone can understand why is this such a problem across borders - why would the courts be involved in anything other than making sure what I want done is actually done. Why does this even need a lawyer to write up? I think it's a scam by lawyers.

Almost Canadian

Their rules matter if the assets are in their jurisdiction. Why us that so difficult for you to understand? Let's sat you jointly hold a house with your uncle as joint tenants. The will you drafted yourself gifts your share to your brother. You die. In the jurisdiction you last lived in survivorship doesn't apply, it does in the jurisdiction the house is. As a result, you have no share if the property to gift.

Usually there will not be an issue. Sometimes there is.

Alan2005

But that's a contrived example. If I've got a will saying everything goes to the missus, and if both of us go at the same time then it's divvied up between my family why do I need to write that again? Seriously - there is no good reason I can see other than a cash grab by the lawyer industry.

glenfiddich

Before I started this thread, I searched for anything about wills...I found nothing...I am not sure if we are getting anywhere with this thread but I do hope that it provokes some thought on our personal wealth and that we might not get our estate handed over in a smooth and timely fashion...


It must be hard to find a lawyer that is able to practise estate law in two countries, too. A will in one country or province is difficult, involving two is even harder...

Almost Canadian

Of course it is. It seems as though you believe that the only profession in the world that isn't out to grab all it can from everyone it can is the profession in which you work.

In your example, assuming you are older than your wife, if you both die in, let's say, a car accident, the law states that you died first. So your assets pass to your wife's estate. She then dies. You haven't said that she made a will. If she did, her estate would be distributed in accordance with the terms of that will. If she didn't, her estate would be distributed in accordance with the laws of intestacy of the jurisdiction of her domicile, which may be very different from the laws of the jurisdiction where the assets are held, or the jurisdiction that you think has the correct laws.

In England, will drafting is a loss leader for solicitors. They do it as they want to build up their "will banks". Generally, they agree to store the will for the client in the hope that, when the client passes away, the firm will be instructed to administer the estate. This is where wills and estates lawyers make their money. The actual practice of drafing a will in England would appear to be more skilled in England as the solicitors generally understand estate planning to a much greater level than their Canadian counterparts (at least the ones I have seen). When I left, the average fee for a will was about 60 pounds.

In Canada (or at least in Calgary as this is the only place I have practised) the lawyers rarely keep the will on behalf of the client and, one must assume, don't really care if the firm is instructed to administer the estate. This could be poor business sense on the part of lawyers, it could be that it is a cultural thing and clients actually want this. In addition, lawyers here tend not to get involved in estate planning at all and simply send a questionnaire to the client asking them what they want to do (but without explaining the pros and cons of the client's decisions). Again, I appreciate that practises may vary from lawyer to lawyer but, generally, this is what happens. When the questionnaire comes back, the lawyer will pass it to their assistant, who will then draft a pretty standard - leave everything to my spouse and then my kids if s/he predeceases me). Pro forma Personal Directives and Enduring Powers of Attorney are also prepared and the lawyer charges $400 - $600.

If people really do not care about what happens once they die, they should draft their own will using one of the crappy will packs available. It will likely not do what they want it to and, as their personal representatives may not be able to prove that the will was validly executed, it may be declared invalid and the rules of intestacy will apply. Most people have no real assets anyway and, as has been indicated above, if they have bank accounts in joint names, have named the appropriate beneficiaries in their insurance policies and hold their real property as joint tenants, there is little else to worry about.

Most people don't really need a will. They do so as it gives them a warm fuzzy feeling inside. There is an argument that those with kids should appoint guardians but, in reality, guardians could be easily appointed if both parents were killed while the children were minors.

glenfiddich

My hope by having a newer will/legal that reflects our newer situation of now owning real estate in two countries...is that if/when it is needed that more of my money makes it to where I want it to go

1) in a timely fashion
2) with fewer tax implications...

....I would hate for the will not to be correct for the area and not be paid out to my heirs simply because the will was not correct for the area...

Alan2005

Actually that's a detailed response to my facetious questions. It does explain things. Thanks.

Me and the missus have wills from the UK - but they are pretty simple. Not got them here, but the biggest asset is the house and both our names are on the title. I'll probably get round to sorting it out at properly at some point when I've got more stuff to worry about and there are tax implications.

JonboyE

I think this is a big difference between the UK and Canada. In fact, I should not say Canada, but just BC, as this is the only jurisdiction I have any experience in. Most UK solicitors seem to have, at a minimum, a passing knowledge of inheritance tax and can advise their clients appropriately when drawing up a will. There is no inheritance tax in Canada.

As Almost Canadian has said, most people have straightforward wills: leave everything to the spouse or the kids if the spouse goes first. Both spouses have wills that mirror each other. Both spouses also prepare powers of attorney for each other. Then, as long as they have joint bank accounts and own all significant assets (i.e. their house) jointly*, and RRSPs and insurance policies have named beneficiaries, then the death of one spouse has relatively few legal or tax consequences. +

Even when the surviving spouse dies and the children are executors the lawyer's involvement rarely seems to be more than getting the will probated.

This may be why the lawyers charge more to prepare wills. There is no gravy for the honest ones.

This is rather a long way to get round to the point, that estate planning is more often done by accountants than lawyers. For business people we work out tax-efficient succession plans. We work out what the company articles and shareholder agreements need to say and give this to a lawyer to draft appropriately.

In other circumstances trusts can be used to minimize taxes and ensure a persons wishes are carried out after their death. Again, the accountants do the planning and specify the desired tax outcomes and the lawyer will draft the trust documents to make sure it happens.

* As AC pointed out, this only works if you are registered as joint tenants and not tenants in common. However, joint tenants is the default way and I would be very surprised if a lawyer or notary registered spouse's title in BC as tenants in common without explicit instructions from their clients. I am not sure if the same applies in the UK so you will need to check.

+ In BC, at least, the biggest problem may be ICBC. Some Autoplan agents will transfer the ownership of a vehicle with a copy of the death certificate and will. Others will insist on a probated will. <rant> Just another example of the strangeness of ICBC: largely untrained and unqualified employees get to make decisions of significant legal consequence.</rant>

Almost Canadian

I had a will before I was married. My marriage invalidated it. I have not made a new one. The law of intestacy of England gave my beneficiaries what they needed, as it does in Alberta. I am not going to pay a lawyer to draft one here

JAJ

Sigh.

Let's say you live in England and have a property in Ruritania.

The inheritance process on that property is governed by Ruritanian law which can do any of the following:

- accept your English will for local probate on a par with a Ruritanian will; or
- ignore your English will completely, in which case your Ruritanian property would pass on in line with their laws on intestacy (someone without a will);
- accept your English will, but apply any local laws, such as mandatory heirship for your spouse and children; or
- insist that local capital gains tax and/or inheritance/estate tax is paid before transfer of ownership

How to mitigate these risks? First off, find out how your English will will be viewed by Ruritania and secondly, if there's a problem, then you need to consider if you can make a parallel will under Ruritanian law. Or sell the property. Or see if creating a trust/company under Ruritanian law would be a good idea. And so on.

glenfiddich

OK...we have a UK will, as we lived there... but it is out of date as we live here and have real estate here in BC too...The best case scenario would be to sell the UK real estate that we have, and that will solve a lot of this. I think that if we can get everything in to BC that that will make making a will a lot easier....We feel the need to have a living will and get a financial and medical power of attorney. (We have no children)...when we have our will in the final stages, we want to "stress test" our paperwork and see if we walked in to our bank...would it be ok? Dying with out a will and having all of our hard earned work go to the gcovernment would really not be what we had in mind...

One thinks about coming to Canada and living here, but also the part about getting sick and dying here is part of it at some point...A very harsh and real part of "living the dream"....