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Where There’s a Will…

We try to do the safe thing before we fly. We check the logbook, chat with the engineer, do a walk around. We want to make sure we take care of as many of the small things as possible, so that if anything big happens, we are prepared.


May 4, 2010
By Neil J. MacDonald

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We try to do the safe thing before we fly. We check the logbook, chat with the engineer, do a walk around. We want to make sure we take care of as many of the small things as possible, so that if anything big happens, we are prepared.

What about your personal life? Not your health – smoking and drinking are for your doctor to discuss with you. How many of us have a “current” Will? I say current because things happen in life. We get married, have kids, buy and sell land, get divorced.

How well does a Will you drafted 10 years ago stand up today? The answer may be – fine thanks. For the rest of us, it may be time for a reality check – today’s reality!

You may feel you don’t need a Will. You don’t own land, aren’t married, don’t have kids. If you die without a Will, you have died “intestate.” This means the government will decide who benefits from your estate.

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For the most part, things will go pretty much the way you might expect – for a fee, of course. Your parents will usually be the beneficiaries if you don’t have a spouse or kids. Next, will be siblings, nieces and nephews, then other kin. Once this list is exhausted – you may have guessed this – your estate reverts to the government! I am not sure how you feel, but I think the government has enough of our money as it is.

If you die intestate in British Columbia, with a spouse but no children, your spouse will get the entire estate. If you have more than one spouse (separated but not divorced, and have a common-law spouse), your estate is divided proportionately between them according to what the court feels is fair.

If you have a spouse (let’s stick with just one for this example) and a child, the first $65,000 goes to your spouse, along with household furnishings, and an “estate for life” in the spousal home. The residue of your estate is divided, with half going to your spouse, and half to your child. If you have more than one child, then the residue is one-third to your spouse with two thirds, divided equally, to the children.

Having a Will does not give you absolute discretion as to what happens to your estate. There are a number of parties who can challenge a Will using various legal means. Challengers can include spouses or children left out of a Will, and creditors. A properly drafted Will goes a long way towards you dividing your estate your way.

You have to be 19 years old to have a Will in B.C., unless you are married, or serve in the military. You also have to have “testamentary capacity.” This means you have to be of “sound and disposing mind and memory.” In other words, know what you have, who you want to leave it to, and why.

Wills follow a specific format. Revoke all previous wills, appoint an executor and trustee, tell them what to do. The executor is responsible for the administration of the estate – funeral, distributing assets, paying debts, and the trustee is responsible for trusts created under the Will – such as child-care trusts. They can be held by the same person. It is a good idea to name an alternate should your first choice be unable.

The next parts will direct the executor and trustee, and outline who gets what. If you have children or a spouse, you must ensure their future needs are taken care of, or risk a challenge.

If you are contemplating marriage, are expecting a newborn – these facts should be included in order to ensure your Will
remains valid.

You should name a guardian for minor children – those under 19 in B.C. – (and an alternate as a guardian cannot name another), and whether the share of the deceased child should pass to their offspring. At the risk of sounding selfserving – it is best to have a lawyer or notary public draft a Will. The kits you find in a drugstore can cause more trouble than they are worth. Pay for a professional. This is your final say as to what happens, and you want to make sure to say it right.

You should also look at your will periodically – to make sure it is current. Where there is a Will there is your way!


Neil MacDonald is a lawyer with Harper Grey LLP, practising in aviation law. He holds an ATPL-H, and flies as an air ambulance captain on helicopters in B.C. nmacdonald@harpergrey.com. This is not a legal opinion. Readers should not act on the basis of this article without first consulting a lawyer for analysis and advice on a specific matter.


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