Since 2008, I have been successfully coaching executors who are filling out their own application for a grant of probate which also included proof-reading the application before they file it at their local Court of Queen's Bench. In my next few posts, I will list some of the most common mistakes found in a Will:
1. More then often, believe it or not, the personal representative, the beneficiaries and even the testator's name can and will be typed wrong, simply because of typographical errors.
How to prevent this: Names in a Will (especially uncommon names) should first be checked for correct spelling, no one should assume or guess the spelling of a name. Check with the actual person by having that person write down the correct spelling of their name, if you are using a lawyer to create the Will being it to him or her.
2. I have found that many people act responsible regarding their estate matters, one way they show this, is having their Will completed and executed to their requirements. What I have noticed is that most people fail to keep the Will updated regularly. Some parents or individuals create their Wills when their children are small and then just forget about it. Many years can go by and the children have grown up, marry and change their names and even their addresses, therefore the name and or address that is in the Will is now wrong at the time of having to probate the Will.
How to prevent this: At least every five years (less if needed) review your Will and see if family and friends' names and addresses listed in the Will have now changed. If they have, either have a codicil created to address the paragraphs in the Will that may apply here. Or if it is time to create a new Will, make sure family and friends names and addresses are correct in your new Will. FYI - in Alberta and since February 2012 the new Wills and Succession Act has been in place, it would be very important to review you Will if it was created and executed before that time to see if updating it is necessary.
3. There are times when a beneficiary or personal representative/executor named in your Will predeceases testator.
When this happens here is what you do: If the Will requires no major changes and if applicable, use a codicil to update your Will, by naming a new beneficiary to replace the beneficiary who pre-deceased you and the same would apply for a pre-deceased personal representative/executor. The Codicil will have to be witnessed just like the Will had to be.
4. Lets say, the owner of the Will had his/her Will created and executed 20 years ago, and later the executor has to have the Will probated at the request of the testator's bank or at the request of land titles, etc. The executor will soon come to find out, here in Alberta, that an original Affidavit of Witness to a Will is required to file along with the application for a grant of probate. This can prove difficult for the executor if at least one of the witnesses are hard to find or lives out of town or even out of the Province.
How to prevent this: The best thing for the owner of the Will to do is to request an original executed Affidavit of Witness to a Will at the same time the original Will is being handed over from the law firm, so that both documents are put together in a safe place. Also remember, as the owner of the Will, to have the Exhibit A stamp completed and placed on the back of the signature page of the original Will (the law firm will know what is to be done, but I am a strong believer that we as individuals have to do our own due diligence in making sure important work is done right.) Also this also applies to Codicils (meaning, get an original Affidavit of
Witness to a Codicil as well.)