Making A Will In Manitoba

Yes. In Manitoba, as long as you write the will in your own handwriting in ink and you date and sign the will at the end, your will is legal. We call this a holograph will.

Yes. In Manitoba, as long as you write the will in your own handwriting in ink and you date and sign the will at the end, your will is legal. We call this a holograph will.

Yes. In Manitoba, as long as you write the will in your own handwriting in ink and you date and sign the will at the end, your will is legal. We call this a holograph will.

We often hear that a person is an executor and trustee. What does that actually mean? Is there a difference? The answer is yes, there is a difference between trustee and executor. However, when we draft wills, we almost always appoint the same person as executor and trustee.

The difference is that an executor is the person who assumes the assets of the deceased on death.

We are often asked who gets paid from an estate first? The executor’s first responsibility is to deal with the deceased's liabilities. Most of the time this means paying all of the deceased’s debts including their terminal tax return. It can also mean dealing with unresolved legal matters, such as lawsuits.

Once the debts are paid or legal matters settled, the balance of the estate goes to the beneficiaries. Until the liabilities are settled however, the actual amount owed to the beneficiaries remains unknown.

Let’s now look at the role of a trustee. A trust cannot exist without the three certainties ((i) The Certainty of Intention; (ii) The Certainty of Subject Matter; and (iii) The Certainty of Objects. In this case, until liabilities are settled, we don't have the Certainty of Subject Matter. Therefore a trust cannot technically exist. The trust doesn’t form until the debts are paid and liabilities are settled at which time the certainty of subject matter crystallizes.

The executor then becomes the trustee who holds the assets, in trust, for the beneficiaries. The difference is somewhat academic, so people shouldn't concern themselves too much about this distinction.

Executors can charge a reasonable fee for performing required duties. There is, however, no typical executor fee. How much do estate executors get paid? It depends...

Courts have stated that executor fees, if not specified in the will, should be reasonable under the circumstances. For example, a deceased leaves $1 million in cash in the bank to an adult child, who is the only beneficiary, and the deceased had no liability. In this case, a court would likely find that, while the estate assets were significant, the work required to administer the estate would have been minimal. An executor would have difficulty charging 5% of the estate or $50,000.

On the other hand, if a deceased leaves a complicated estate with dozens of beneficiaries, debts to be collected, and liabilities, an executor may be justified in charging a fee amounting to a much larger percentage of the estate.

We can review your document and advise you.

Yes, that would not be a conflict.

Will pricing is not regulated. Some lawyers charge more and some charge less. The cost will depend on the complexity of your asset holdings. If you own a company or have an interest in several companies or if you own multiple properties, you will likely pay more for your will. In addition to preparing your will, a lawyer must conduct a capacity test to ensure you have the requisite legal capacity to make a will. While, in most cases, your capacity is obvious, we must still keep notes on file showing we asked the appropriate questions. I expect that you will find a range starting at a few hundred dollars to several thousands depending on the complexity.

In Manitoba, you can write your own will in your own handwriting. As long as you write it yourself and you date and sign the will at the bottom, the document is legal. We refer to this as a holograph will. It gets more complicated if you type or complete a will kit.  In these situations, the will is legal as long as it meets the requirements of the Will’s Act and the Queen’s bench rules. You must initial each page, and sign it. Two witnesses must also initial and sign. But be careful. If you name one of the witnesses as a beneficiary under the will, the witness will forfeit his or her inheritance. One of the witnesses must also sign an affidavit attesting to his or her witnessing.

When someone dies without a will (or the will was lost), it means they have “died intestate.” When someone dies intestate in Manitoba, it is not possible to probate a will, as the term probate only applies when a will is submitted to court.

If a person dies intestate, someone must apply to court for letters of administration. From a practical point of view, the person named as administrator under letters of administration fulfills the same role as an executor does under a will.

The biggest difference is that an executor may have more powers than an administrator. For example, an administrator cannot mortgage the property of a deceased without a court order, while an executor likely can (although the need to do this would be rare). For the most part, an administrator can claim the funds held by the deceased and distribute them as required.

An executor can also be a beneficiary. The same goes for an administrator/trix. In most wills, a spouse will name the other spouse as executor and beneficiary. While a conflict can technically occur when one child, relative or friend is named as executor and beneficiary, courts are not usually concerned unless the executor fails to comply with his or her obligations.

In some unfortunate cases, the deceased leaves minor children. In some cases, testators appoint guardians in their wills. However, this appointment is not necessarily binding. Courts will rely on the legal principle of "the children's best interests".

Courts consider a number of factors in determining the children's best interests. The persons appointed as guardian, or in the case where a testator did not name a guardian, a relative or close friend may apply to court to become guardians.

Presumably, a judge would order that the estate should cover the costs associated with such an application. Either way, an executor should ensure the children's guardianship is settled prior to distribution.

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A lawyer can supervise when you apply your initials and script a special paragraph to the will to accommodate this and make it legal and valid.

If you can knowingly apply and initial, that does suffice if there are witnesses present.

Yes, as long as he or she meets the basic prerequisites.

The prerequisites of being able to perform this task is that the person be of sound mind, memory and understanding. This includes knowing the approximate amounts of her bank accounts and investments, knowing the whereabouts of her assets, the approximate value of her entire estate, and knowing the names of the persons she wants to inherit her estate. It is unlikely that a person in the advanced stages of Alzheimers would be able to meet the above tests.

If she is mentally competent, then you can simply get a Power of Attorney done by a lawyer appointing you her lawful attorney if she so wishes. If on the other hand, she is confused or suffers from a form of dementia, then she would not be able to sign any legal document. If she owns assets which must be dealt with and she is not able to execute a Power of Attorney, there are two possibilities:

1. Request the intervention of The Public Trustee; or
2. Apply to the Court of Queen’s Bench to be appointed as her Committee. (This is rather costly and therefore it is best to have done a Power of Attorney early in life.)

A holograph will (one written entirely in your own handwriting) does not need a witness; however, on death, your Executor has the job of proving it is your handwriting and providing evidence that you were of sound mind, memory and understanding at that time.

A typed will requires two adult, independent witnesses. If a witness is a beneficiary, then any gift to that person becomes void.

The law provides for common law spouses in certain circumstances to inherit the first $50,000 or more of the estate.  In addition, if your common law spouse owns the home and you live in it, you are likely entitled to homestead rights. The law in this area is complex.  Each case turns on its own particular facts.

If your dad has a will, then the appointed executor can act. If your dad has not made a valid will, an application would have to be made to the Court of Queen’s Bench to appoint you as an Administrator, and you would have to be a resident of Manitoba and post a bond.