Don’t throw away those napkins: the new WESA

As we close in on the proclamation date (March 31) for the new Wills Estates and Succession Act (PDF), more opinions on the nature of the legislation are being voiced.

One of the more interesting comments is that the purpose of the Act is to give effect to what Will makers intend to do with their assets when they pass. Thus, a “Will” is defined as not only a “Will” but also a “Codicil,” and anything ordered to be effective as a Will (under Section 58). Suffice it to say that the definition of a Will is now significantly expanded.

This shift makes the Executor‘s job harder. Now, in searching for a Will after a person dies, the Executor also has to search for any other document (whatever its form) that the deceased person may have written that indicates his or her intention to dispose of assets.

It will take some time, and some important judicial interpretation of the Act, to gain good knowledge of what Courts will accept as a document that acts to bequeath the deceased person’s assets. It has been said that a Lawyer’s notes of a meeting with a client making a Will could be interpreted as a Will. This sort of argument may have force if, for example, the Lawyer starts drafting a Will and the client passes away before signing it.

Everything in writing, therefore, will now count. So, when going through the filing cabinet, dresser, drawers, boxes, etc., never throw anything away, because something could be found with a message about what the Will maker wanted to do with this or that asset. Quite a challenge.

This ad ran in the Richmond Review on February 21, 2014.