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What You Need To Know Before Signing Your Will

When Spanish born Blanca Robinson died at age 74 she left behind not one will, but two wills.

The first was a Spanish will which she signed in Spain in 2002. It dealt with her European assets including a flat in London, an apartment in Altea, Spain and money in two Spanish bank accounts. This will made it clear she also had a Canadian will which dealt with all her other assets outside of Europe.

The second will was a Canadian will which dealt with her North American assets, including a Condo in Naples, Florida. Her final Canadian will was signed 4 years after the Spanish will.

So, you think - what's the problem? - A Spanish will for off shore assets and a Canadian will for North American assets. No problem.

If only it had been that simple.

When the Canadian will was made by Blanca Robinson's Toronto lawyer he did not ask her if she had a second will. He then included in her will a clause that is found in 99.999% of all wills drawn by Canadian lawyers. That clause "revokes", or cancels out all earlier wills a person might have made prior to their death. That clause in effect says ... don't look at my earlier wills, just look at this last one I made with my lawyer.

The revocation clause makes perfect sense. If you have drawn several wills in your lifetime you want the world to know it is the LAST will signed by you that is to be acted upon when you die - so you "revoke" or cancel all the earlier wills.

It makes sense - except as in this case when you have assets in two different countries and you want the assets handled separately in those countries.

The question that came to the Court of Appeal in Ontario was - do the two wills get dealt with or is it only the last Canadian will that is to be acted upon? Does the Spanish will get tossed?

If the Spanish will is rejected, the people who were to benefit in the Spanish will get nothing and the people mentioned in the Canadian will get it all.

Three very important people took the position that the court should allow both wills to be valid.

The first important person was the Toronto lawyer who drew the Canadian will. He admitted he had not asked Blanca if she had a second will. He swore under oath that had he asked her that question she would have answered that she did have a Spanish will and that she wanted that Spanish will to be valid along with the Canadian will.

The second important person was Blanca's common-law spouse. He swore that they had a close and loving relationship right up to the end and that he too was certain Blanca had intended the Spanish will to be dealt with as well as the Canadian will.

The third and final evidence in favour of the Spanish will was given by Blanca's close woman friend and confidant for 25 years, who just happened also to be a lawyer. This witness confirmed that Blanca had talked about business and personal matters to her and she too was certain that it was Blanca's intention that the Spanish will should be valid.

The Respondents opposing the Spanish will had one argument and it was short and sweet.

Read the Canadian will they said. It was the last will made out by Blanca before her death and it states clearly that ALL earlier wills are "revoked" - end of case. Don't listen to what anyone says, just read the last will. It was the last word, so to speak, left behind by Blanca on the subject.

If you had hoped that the Ontario Court of Appeal would have had a heart and listened to those who knew Blanca best and loved her - you are bound to be disappointed.

The Court said:

"The general rule ... is that in construing a will, the court must determine the testator's intention from the words used in the will, and not from direct extrinsic evidence of intent."

In other words, the court said it feared that if you allow the intentions of the person making the will to be determined by what other people think, rather than the person's own clear words set out in their will, the courts would be flooded with applications to set aside the clear instructions of the will with people anxious to take a shot at grabbing a piece of the pie. The court has a point.

Lessons to be learned:

1. Tell your lawyer everything about the assets and liabilities of your estate when drafting a will.

2. Choose a lawyer that takes the time and has the expertise to do it properly.

If you're contemplating making a will - If you have questions concerning estate matters;

Give us a call.

Talk to us.

We can help.

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