加拿大：遗嘱怎么立？

记者Ruth整理报道：

木然：人生中很多事情都需要及早做好准备，我们今天的话题就是讲讲遗嘱的问题。在我们华人的角度，好像不怎么喜欢立遗嘱，我接触过的好多人，都是在生命之火要熄灭的时候才想到立遗嘱，没人会说在十几岁，二十几岁的时候订遗嘱。而在西方，主流社会他们都会很早订遗嘱。

栗钧律师：在我的客户里，西方人或者加拿大其他民族的人，立遗嘱的还是很多的，岁数也不见得很大。但是非常年轻的人很少有遗嘱。多数立遗嘱的人都是在有了家庭、有了孩子之后。也有人30多岁不到40岁就开始立遗嘱的。立遗嘱还是非常有必要的。为什么呢？我这里有两个客户遇到这样的问题。一个人大约30岁，急性疾病突然去世，没有准备和预兆。处理他的财产遇到很大的问题。目前已经拖了一年多，很麻烦。

木然：像这个客户的情况，突然去世，假如没有遗嘱，他的银行财产、保险金甚至汽车都不能动的，死亡人的家属可能生活出现问题，法官会不会针对这种情况特别开恩，对死亡人的家属讲点情感，把一部分钱解冻出来帮助未亡人？

栗钧律师：不可以的。如果没有遗嘱，法庭要任命遗产管理人，这个任命过程比较长，即使人一去世就提出申请，一般这个任命10个星期之内也是完不成的。我的客户经常遇到的情况就是去世之后还不知道谁来申请做遗产管理人好。
我的另一个客户刚过40岁去世了，完全是意外去世。没有遗嘱。本来在去世的这个月份要卖掉他的房子，由于突然去世没有人有权利代表他签字，房产买卖就无法完成。随之而来的问题是银行的贷款无法处理，地税没有人付，房屋的相关费用要付费，这都是损失。银行要对公众负责、对客户负责，通常会去拍卖他的房子，但拍卖的价格通常都不会太好，加上一些罚款，这些都是不该有的损失。遗产受益人可能会出很大的亏。
如果有人去世没有遗嘱，一时找不到受益人，又没有人申请做遗产管理人，可以转交给省政府的一个专门办公室叫PUBLIC GRADING AND TRUST, 专门替没有人管的死者来及时处理遗产，来保全财产的价值。

木然：如果没有立遗嘱，没有找执行人，由省政府的公共机构来负责的话，，要缴纳费用吗?

栗钧律师：我不完全确定，但以我的理解可以收取合理的费用。最大的麻烦是省政府的这个机构也不见得会很快参与进来。如果没有人通知他们，这是很大的问题。遗嘱这个东西是百年之后的东西，可能立了三十年、五十年之后用的东西。遗嘱的好处是不要让你的财产落空，因为实在找不到受益人的的话，省府的PUBLIC GRADING AND TRUST办公室是可以把你的财产充公的。

木然：如果某人在生命到了最后一口气的时候，突然想起自己没有立遗嘱，在医院里面赶紧找两个人，那怕是不认识的人，赶紧立遗嘱可不可以？

栗钧律师：你现在讲的是立遗嘱的必要手续。遗嘱法是这么规定的，并不是条文法，而是惯例：你不找律师，可以自己写遗嘱，但你必须每个字亲笔用手写下来，不能打字。

木然：不会写字的呢？
栗钧律师：那就没办法了。除了要每个字都亲笔写下来之外，遗嘱一定要有日期，要签名。这样遗嘱也是有效的。打印的遗嘱则一定要在两个证人见证的情况下才能生效。两个证人不能是收益人，不能是遗嘱的执行人。见证人必须是成年人。普通的人一般考虑不周全，不太了解如何写遗嘱，最好找律师咨询一下。

木然：找律师是不是就不用找证人了？

栗钧律师：不是这样，找律师做遗嘱，签署的时候仍然需要证人。律师或者其他工作人员都可以做证人。

木然：对立遗嘱的人的身体状况也有要求？

栗钧律师：怎么样立遗嘱才有效？要注意很多方面。必要的程序很重要。原则上讲，立遗嘱人不能受到受益人的影响。比如夫妻两个人共同立一份遗嘱，互为受益人是无效的。因为彼此是要每个人各自立遗嘱。另外签署遗嘱的时候，受益人不能在场，不能在同一个屋子里。立遗嘱前不能听受益人的指令。

木然：遗嘱立好之后，是不是要保密？比如太太来打听丈夫的遗嘱，可以吗？

栗钧律师：遗嘱是绝对不可以透露的。我们给客户的建议是遗嘱立好以后，封存在一个信封里，轻易不要拆开。只需要告诉遗嘱的执行人，立了遗嘱，遗嘱放在什么地方，需要的时候知道去哪里去取。律师通常保存一个附件，原件让客户自己保存。

木然：立遗嘱需要自己给出草稿吗？还是有标准的文本？

栗钧律师：立遗嘱律师的服务不是简单的做文件，很重要的一方面是咨询，跟立遗嘱人商量，怎么做符合法律，符合他的意愿，遗嘱由几大部分内容构成：第一谁是遗嘱执行人？第二你想赠送什么具体的礼物。第三遗产剩余按比例分配。另外遗嘱中不需要理出财产清单。因为遗嘱是百年之后才有用，而你的财产可能在你立遗嘱之后第二个星期就变化了。

木然：还有一个问题想问，如果某人立遗嘱人将财产都留妻子，但立遗嘱人死后他的孩子不同意给妻子，该怎么办？

栗钧律师：严格上来说，只能按照嘱执行。也就是认遗嘱不认亲情。

http://www.dushi.ca/tor/news/bencandy.php/fid12/aid8177

Executor

The executor is the person who will make the decisions concerning the administration of your estate. It should be someone who has a 'good head' on their shoulders... and remember they can have the benefit of an estate lawyer regarding any questions involving law and procedure… so experience is not necessary.

Most people choose their spouse but you should also choose an alternative executor just in case your spouse dies with you or dies subsequently but before your estate is administered.

The alternate executor can be your friend, siblings, children over 18 and it can be more than one person. Sometimes it is advisable to have more than one if the executor is not your spouse. The decision will depend upon the dynamics of your own personal situation.


Personal Property

If you are married and your spouse survives you then in the vast majority of cases everything will be transferred to your spouse. However sometimes a spouse will want to leave something special to someone other than their spouse and it must be listed in the Will in order to be legally binding.

For example, a mother may want her jewelry to go to her daughter or a father may want his gun collection to go to his nephew.

If there is a specific item that you want to go to a certain person it must be set out in the Will in order to be legally effective.

Some people prefer to make a list on a separate piece of paper and have this list given to the Executor. The problem is that this separate list is not legally binding and the Executor does not have to follow it.

If you want that list to be followed by your Executor you should include it in the Will. However, the problem that arises is that if you change your mind you then have to change the Will.

What many people do is provide a separate list and hope that their executor will follow their wishes. However, for important gifts most people will make sure it is in the Will itself.

Residue of your Estate:

After all your debts and expenses have been paid then what is left remaining is called the 'residue' of your estate. You have the right to distribute the residue in whatever manner you think advisable subject to certain restrictions regarding the support of your surviving spouse and minor children. (This is usually not a consideration but if it is of concern to you I can discuss it with you.)

Most people leave the entire residue of their estate to their spouse and if their spouse does not survive them, to alternative beneficiaries (i.e. their children, other family members, friends etc.)

The residue can be split into parts - or by percentage.

If you have minor children and you want to leave everything to your wife and, if she dies with you, then to your minor children - you should also consider another group of alternative beneficiaries beyond your children. This is to cover the situation where the entire family is killed in a common disaster - i.e. car crash. Where would the estate go if the entire family perished in a common disaster?

This may be an unlikely event and if your children are not minors and do not live with you and do not usually travel with you then it may not be a consideration.

However if it is a consideration then you should specify beneficiaries who would share the estate if the entire family was killed.

Children:

Most people leave their estate entirely to their spouse and if their spouse does not survive them then… to their children.

If your children are minors - and both parents have died, then the Will should contain 'trust provisions' governing the support and expenses of the children, etc.

The usual 'trust provisions' will generally provide that the executor will provide support to the children for their living expenses etc. and then they will be given their share of the residue at a certain age. If no age is specified then they can take their share at 18 years of age.

Most people consider giving an 18 year old a sizeable chunk of money as foolhardy and therefore raise the age to 21.

Some parents go even further, depending on the circumstances, and may for example specify that the child receive a quarter of the residue at 21 and then another quarter at 23 years of age and the remainder at 25.

It all depends on your circumstances and I can help you address this issue.

The Wills I draft also gives power to the Executor to give a child, whether they are a minor or before they are entitled to their share as an adult, a special payment(s) - solely in the discretion of the executor.

For example, if you and your spouse are dead and your brother is handling the estate and a child needs extra money beyond usual expenses and for a worthwhile cause - some special educational expense or perhaps a car if he needs it for work… the executor can decide whether such a payment is advisable.

Guardianship:

If you have minor children and neither spouse remains alive - then you should name the person or persons you want to raise your children after your death. This may or may not be the same person as the executor. However, it is the guardian who your child shall be living with until at least the age of majority.

Many people will specify for example... 'my brother and sister-in-law' or, a child who is already an adult. This all depends on the circumstances. Some people feel that this matter, because it is remote and also because it is an issue they feel confident their family can sort out, do not name a guardian.

This choice is not binding upon the courts. If there is no dispute as to where the children will live then it is not an issue. If there is a dispute, the courts will decide what is in the best interest of the children. However, a judge will give considerable weight to placing minor children with guardians named in a Will and for that reason you should name a guardian.

In the vast majority of cases I suggest that you name a family member (or friend) as the guardian but not tell them. Why? Because the chance are slim that both spouses would die before the children reach the age of majority and why 'freak out' your brother or sister. The choice is not binding and if the ultimate tragedy does in fact materialize … your family or friends will deal with it then, and these circumstances have a way of working themselves out.

Special Provisions:

This is a part of the will that will have something special… and is seldom used. For example… I direct my executor to place my dog Fido with a dog-loving Catholic family .

I do have one special provision that deals with the situation of sons-in-law and daughters-in-law… a special provision that provides that a separated in-law cannot claim any part of your estate. (One of the most important reasons for having a will!)

I shall have more to say to you about this part of your will.

Your Remains:

This is the part of the will where special consideration shall be noted regarding your funeral, burial, final internment wishes, etc. It should be noted that this part of the Will is not binding on your Executor. If you want to be buried and express this desire in your Will the Executor can ignore it and cremate your remains or whatever…

And usually by the time they get around to digging out your Will, the funeral is over and the body has been disposed of. So you should make sure your family and friends know what you want.

Your preference should be explicitly stated in the will and your loved ones should be made aware of what you have specified in your Will. This relieves the family from having to make a difficult and, in some cases, adverts a controversial decision and a fight.

A simple clause is all that it is required:

It is my wish that my remains be cremated, my ashes scattered on the family farm and my funeral expenses be kept to a bare minimum.

Actually, I recommend that when you retire, if not sooner, you would be well advised to make your own funeral arrangements… this will save your family a lot emotionally and you can pinpoint the amount you want spent on the funeral. At a moment of stress and when being confronted with a funeral director trying to maximize his profits - families may be victimized and spend much more than you would want.

I find that more and more people are choosing cremation and specifically directing that expenses be kept to a minimum.

http://www.canadianwillsetc.com/preparation.php