Question from a reader: 乌鸦传媒淛ust a quick question - the ledger of prior gifts given to children and referred to in the will - is there a requirement that this document be included in the probate submission to the courts or is this simply considered private instructions to the executor on the final division and distribution of assets?乌鸦传媒�
The reader was referring to last week乌鸦传媒檚 column where I provided a flexible and informal mechanism for a will-maker to record gifts that are to be taken into account to achieve fairness when their children receive their inheritances.
For example:
1. They might not add financial support to a child battling cancer to the ledger so as not to take that into account.
2. But a gift to another child enabling them to start a business would be added. And a fair interest rate could be fixed so the long-term use of that gift would be factored in.
The answer to the reader乌鸦传媒檚 question depends on whether the ledger is an alteration to the will or merely a recording of facts.
If the will clause said that all gifts must be taken into account, and the ledger was simply a factual recording of gifts, then it would not be an alteration to the will.
But the clause I provided is not simply a factual recording. It gives the will-maker a choice of which gifts are to be taken into account.
Wonderfully flexible! But with each change to the ledger the will-maker is making a new decision about the disposition of their estate. It is therefore an alteration to the will.
For an alteration to a will to be valid in British Columbia, it must be signed and witnessed in the same manner as a will.
The will-maker must sign in the presence of two witnesses and then each witness must sign in the presence of all three.
The witnesses cannot be a beneficiary or a beneficiary乌鸦传媒檚 spouse.
Therefore, for the will-maker乌鸦传媒檚 entries on the ledger to be legally valid, we need to add a couple more columns to accommodate witness signatures.
Some of you might reasonably be having trouble envisioning the growing ledger that would accompany the clause I provided last week. If you e-mail me at paul@hlaw.ca with the request, I will provide a ledger to you.
Finally, in direct answer to the reader乌鸦传媒檚 question: Yes, the ledger must be included along with the will in the probate submission. Thank you so much for asking the question, causing me to recognize the need to treat ledger entries as will alterations. That was quite the miss on my part!
Maybe it乌鸦传媒檚 time for me to write again about other alterations to wills. For example, I often take calls from folks who would like to change their executor. It乌鸦传媒檚 been over a year since I乌鸦传媒檝e written about this subject matter. Tune in next week for some 乌鸦传媒渄o it yourself乌鸦传媒� guidance.
As attractive as 乌鸦传媒渄o it yourself乌鸦传媒� will planning might seem, please understand that this is a complicated area of the law and you are taking a significant risk if you do not access the advice of a fully informed lawyer who can advise you properly.
You cannot rely on bits and pieces of legal information that I provide in this column as a substitute.
Paul Hergott
Lawyer Paul Hergott began writing as a columnist in January 2007. Achieving Justice, based on Paul乌鸦传媒檚 personal injury practice at the time, focused on injury claims and road safety. It was published weekly for 13 陆 years until July 2020, when his busy legal practice no longer left time for writing.
Paul was able to pick up writing again in January 2024, After transitioning his practice to estate administration and management.
Paul乌鸦传媒檚 intention is to write primarily about end of life and estate related matters, but he is very easily distracted by other topics.
You are encouraged to contact Paul directly at paul@hlaw.ca with legal questions and issues you would like him to write about.
