Advocate Jan 2014

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22 VOL. 72 PART 1 JANUARY <strong>2014</strong> THE ADVOCATE [ Ours is not only an ancient and honourable profession, but it is a profession essential to the function of free government. If some cataclysm were to wipe out the whole of the legal profession overnight, so to speak, and destroy all lawyers, a new group of lawyers must come into being so that the processes of an ordered free society may continue, for the lawyer is the defender of the life, liberty and property of the citizenry even as against the government itself. —Frank E. Holman [
THE ADVOCATE VOL. 72 PART 1 JANUARY <strong>2014</strong> 23 WILLS AND ESTATES By John Cochrane* Owners of assets of significant value should have a will to cover the contingency of an untimely death. As owners age, they may want to take steps to have more of their assets pass outside a will because there are drawbacks to transferring assets by will. TRANSFERS UNDER A WILL The Common Law A will is a document prone to litigation, as evidenced by the many cases on disputed wills. The 1881 edition of Sir Henry Theobald’s Concise Treatise on the Law of Wills 1 refers to approximately 10,600 cases. The 2001 edition of Theobald’s Treatise 2 omits many of the old cases, but there is an ample supply of new ones from which the editors can draw. The table of cases in the 2001 edition runs to approximately 9,900 cases. There are a number of reasons why there are so many cases on wills. First, the absence of the testator/testatrix (“will-maker”) at the time a will comes into effect emboldens claimants. Prospective beneficiaries under a will can proceed to court shamelessly, knowing that a personal confrontation with the will-maker will not occur. The death of the will-maker removes the social barrier to legal action that might otherwise exist. Second, unlike a negotiated business document, a will is unilateral. Will preparation does not include giving notice to those affected. The result is that a will may have a surprise element, even a shock effect. The greater the expectation on the part of a prospective beneficiary, the greater can be the disappointment; and the greater the disappointment, the greater can be the desire for redress. Third, conditions attached to bequests can be a source of annoyance. Whereas inter vivos gifts are usually immediate and unconditional, bequests can be subject to a variety of conditions. Bequests that vest only when par- * The writer benefited greatly from the generosity and scholarship of Professor Tony Sheppard, of the University of British Columbia’s Faculty of Law at Allard Hall.
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Because not everyone is this lucky.
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Advocate Jan 2014

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