A lawyer might reasonably be accused of insanity in attempting to set out for individual readers a list of top 10 must-have will clauses because the art of drafting every will results in a document as individual as a fingerprint.

No testator is the same as another nor are executors.

Restrictions or liberties given to one executor or may not, in whole or in part, be appropriate for another.

Short and succinct clauses as presented in this article may not meet the needs of a complex estate or a complex structure of beneficiaries.

And so, caveat emptor, this article is designed only to give the reader general legal information as to what types of clauses make for an efficient and effective will, one which causes the least amount of problems while best respecting the specific wishes and intent of testators.

Without further fine print, here are the top 10 must-have will clauses.will clauses

1. REVOCATION

Unless a will specifically revokes previous wills and codicils, a new will can provoke a very expensive judicial brouhaha as a court tries, after the fact, to sort out which sections of previous wills, if any, survive apparently contradictory statements in subsequent wills. Therefore, any good will worth its salt would include the customary article as follows:

"I revoke all my prior wills and codicils."

2. APPOINTMENT OF EXECUTOR

A will without an executor is like a bologna sandwich without the bread ... with the attendant legal consequences.

Lawyers with experience end up seeing a lot of surprising things one of which is, sooner or later, the will that does not appoint an executor. While a will sets out the collection and distribution of an estate, the omission of appointing an executor may well require a court application and a waste of many thousands of dollars, especially if the appointment is disputed.

Only a testator knows, really, who is trustworthy enough to manage his or her estate so in any event, there is no way you want to leave this decision to a disinterested judge.

3. ALTERNATE EXECUTOR

If an appointed executor dies before the testator, or becomes disabled before the estate is fully liquidated, there is a vacuum of authority at the worst possible time. If there is no alternate executor, the job of wrapping up the administration of an estate may be given by a judge to the last person a testator might have wanted, causing friction in the family.

A good will may include something similar to the following:

"I appoint John Doe as the executor of this will but if he is unwilling or unable to act or to continue to act, I appoint Jean Bill in his place."

4. THE SURVIVAL CLAUSE

In many cases, a testator will give his estate to a family member, such as a spouse.

But sometimes both die as a result of some catastrophic accident, but one surviving a bit longer than the other. When this happens, it may require that probate occur twice on the same assets. That can mean delay, double probate and legal fees.

For these reasons, lawyers often suggest a clause such as the following in their client's wills:

"A beneficiary is deemed to have survived me only if she is still alive on the 21st day following my death."

5. GUARDIANSHIP OF CHILDREN

Some jurisdictions, such as British Columbia as of 2009, allow a testator to provide for the guardian of their children in the event of the testator’s death. This clause would only take effect if the other parent entitled to guardianship is already deceased or stripped of custody or guardianship by a court order.

Where the designation of a guardian is made in a will, it is binding and prevents a family fued and the temporary placement of a distraught and mourning child into foster care.

6. EMPOWER THE EXECUTOR

Executor-ManWhere a will does not give the executor flexibility in regards to investments in trust management, the executor or must fall back on provincial trustee statutes which are traditionally very conservative. A wise testator will have chosen his executor are carefully and will have chosen a trustworthy person. The existing laws in regards to the powers of an executor to effectively manage an estate, which often has to be held in trust for months or years, do not give executors much freedom. The first issue is to free the executor in terms of the collection of assets.

For example:

"My executor shall collect and gather my assets and may sell these assets at a time and price and upon such other terms as he considers appropriate in his absolute discretion, and without liability for loss or depreciation."

7. REAL ESTATE AND EXECUTORSHIP

Real property often forms the most significant asset of an estate. Often, market fluctuations or major repairs mitigate against immediate liquidation. As time goes by, an executor comes under increasing pressure by the beneficiaries to sell and cash-out. While seeking to do so at a financially opportune time, an executor would do well to have direct powers set out in the will to manage real assets:

"If any real or leased real estate forms part of my estate, my Executor may lease such property on such terms and may expend funds out of the income or capital of my estate on repairs or improvements, or grant any options and may renew any mortgage or borrow money on any real estate upon any mortgage and may pay off any mortgage that exists on the date of my death as my Executor considers appropriate in his absolute discretion."

8. FREE THE EXECUTOR

The third executor empowerment issue is to remove the executor from the strict and conservative investment restrictions set out in provincial trustee legislation.

The following will do the trick:

"When my Executor administers my estate, my Executor may convert my estate or any part of my estate into money or any other form of property or security, and decide how, when, and on what terms. My Executor may keep my estate, or any part of it, in the form it is in at my death and for as long as my Executor decides, even for the duration of the trusts in this Will. This power applies even if the property is not an investment authorized under this Will, a debt is owing on the property; or the property does not produce income."

9. TRUST MANAGEMENT FOR CHILDREN-BENEFICIARIES

If a parent dies with young children still alive, especially if there is no other parent in the picture, it is vital that a child's share not only be held in trust but also, that the executor or have the flexibility necessary to address the ongoing needs of the child while also trying to retain as much of the capital as possible to give to the child when he reaches the age of majority. Indeed, some people prefer to only give a child his or her final share when they reach an age far in excess of the age of majority, such as 21 or 25 years old.kida

Here is a typical trust management clause I have developed from a variety of models and which gives the executor the necessary flexibility:

"If any beneficiary becomes entitled to a share of my estate while under the age of 21, I direct my Executor to hold and invest such share until such beneficiary reaches the age of 21. While such share is held, my Executor may apply as much of the income and capital of the share to or for the benefit of such beneficiary, as my Executor considers appropriate in his absolute discretion. Upon the beneficiary attaining the age of 21, my Executor shall pay the balance of such share to him or her.

"When my Executor makes any payment for the benefit of any person under 21, my Executor may make that payment to that person’s guardian. When the guardian receives that payment, my Executor is discharged for that payment and need not inquire about how it is used."

10. TOTAL FAILURE

It rarely happens but sometimes none of the named beneficiaries, or their eligible heirs, survive the testator. Most, but not all testators would want to avoid their estate going to the government. If a testator have no problem with the government being their ultimate beneficiary, then they do not need a total failure clause. But, in my experience, most testators will name a charity as an ultimate beneficiary any event that none of being named beneficiaries, or their eligible heirs, are alive at the time of the testator's death.

Here is a sample total failure clause in which I have inserted the United Church of Canada as a simple charity:

"If any part of my estate fails to vest in any person because he or she fails to survive me, or for any other reason, my executor shall give that part of my estate to the United Church of Canada."

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