Detailed Notes on Wills, Estates, and Trusts Introduction

Terminology and Foundations of Wills & Estate Law

Basic Terms Relating to Wills

  • Testator: Individual who makes a Will.
  • Testatrix: Female Testator (gender-neutral term is Testator).
  • Executor: Person(s) designated to execute a Will.
  • Executrix: Female Executor.
  • Executrices: Multiple female Executors (terminology being phased out).
  • Trustee: Gender-neutral term for an executor, often used interchangeably.
  • Personal Representative: Executor in the context of estate administration, may be appointed by the court in absence of a Will.

Bequests and Gifts in Wills

  • Bequest: A gift made in a Will.
  • Specific Bequest: A gift of a specific item or amount.
  • Residual Bequest: A gift of remaining percentage of the estate after specific bequests.
  • Bequeath: To give something in a Will.
  • Devise: Rarely used term for a gift of land in a Will.
  • Disposition: General term for a gift in a Will.
  • Beneficiary: Person receiving a gift in a Will.
  • Contingent Beneficiary: Benefits only if certain conditions are met (such as predeceasing the testator).

Types of Wills

  • Formal Will: Complies with Wills and Succession Act (requires two witnesses).
  • Holograph Will: Entirely in the Testator's handwriting, also compliant with Wills and Succession Act.
  • Estate: All property owned by a person.
  • Property: Encompasses all types of property, including intangible assets (e.g., rights).
  • Real Property: Land ownership.
  • Intestate: Status of a person who dies without a Will (no Last Will and Testament).

Estate Administration Basics

  • Estate Administration: Process of managing and distributing an estate's assets and settling debts.
  • Surrogate Court: Court managing Wills and estates, as well as matters involving incapacitated persons.
  • Grant: Court order allowing designated person(s) to administer an estate.
  • Grant of Probate: Grant issued for a Testate estate.
  • Grant of Administration: Issued for Intestate estates.
  • Grant of Administration with Will Annexed: Issued if no Executor is named, or all named Executors refuse to act.

Legal Framework for Wills and Estate Law

Sources of Law
  • Legislation:
    • Wills and Succession Act: Governs the creation of Wills.
    • Estate Administration Act: Governs estate management.
    • Surrogate Court Rules: Governs court procedures related to estate matters.
    • Adjacent Legislation: Includes Dower Act, Insurance Act, Income Tax Act, Powers of Attorney Act, etc.
  • Common Law: Deals with legal precedents and influences how estate matters are handled.
Court Hierarchy in Alberta
  1. Alberta Provincial Court (ABPC): Lowest court, not involved with Wills & Estates.
  2. Court of Queen’s Bench (ABQB): Functions as Surrogate Court.
  3. Court of Appeal of Alberta (ABCA): Has the authority to hear appeals from ABQB.
  4. Supreme Court of Canada: Highest court for appeals from provincial and federal courts, binding authority.

Introduction to Trusts

  • Trust Defined: A legal arrangement where a Trustee holds property for another's benefit. Example: A gives property to B for C's benefit.
  • Trusts in Wills: Executors function as Trustees managing estate resources for beneficiaries.
  • Minor's Bequests: Often placed in a trust until the minor reaches a defined age or level of maturity.
  • Spousal Trusts: Control access to property between spouses in blended families.
The 'Magic Triangle' of Trusts
  • Settlor: Person who creates the trust.
  • Trustee: Manages the trust properties.
  • Beneficiary: Receives benefit from the trust.

Trustee Responsibilities and Duties

  • Fiduciary Duties: Legal obligation to act in the best interests of beneficiaries.
    • Must disclose relevant information and avoid personal gain from the trust.
    • Executors and Trust representatives must account for all estate assets.
  • Notable Fiduciaries:
    • Executor -> Beneficiary
    • Trustee -> Beneficiary
    • Lawyer -> Client
    • Physician -> Patient
    • Corporate Boards -> Shareholders

Types of Trusts

  • Testamentary Trust: Established upon death within a Will.
  • Inter Vivos Trust: Created while the Settlor is alive.
  • Resulting Trust: Established when property is transferred without payment, implying the holder must manage for the original owner.
  • Constructive Trust: Court-imposed trust used to remedy unjust situations.

Key Takeaways

  • Terminology: Understanding of classifications, such as Executors as Trustees.
  • Fiduciary Understanding: Importance of prioritizing the interests of others and acting in good faith.
  • Trust Use in Wills: Common purposes include delaying inheritances for young beneficiaries, alienation from unreliable recipients, and lifetime support with ultimate control over property.

Next Steps for Study

  • Review the Wills and Succession Act on Canlii, focusing on sections 9, 13-17, and 19-20.
  • Recommended approach: Spend a few minutes reading but allow more time to understand the content.