Advocate Jan 2014

THE ADVOCATE VOL. 72 PART 1 JANUARY 2014
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.