The Continuing Legal Education Society of Nova Scotia

Transcription

1 The Continuing Legal Education Society of Nova Scotia Section JOe Example 2: Last Will and Testament of Homer J. Simpson Raymond G. Adlington, Daley, Black & Moreira Suite Hollis Street, Halifax, Nova Scotia, CANADA B3J 1V Tel or Fax

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3 THIS Is THE LAST WILL AND TESTAMENT of me, HOMERJ. SIMPSON, ofspringfiejd, Province of Nova Scotia. I. I HEREBY REVOKE all former Wills, Codicils to Wills and other Testamentary Dispositions at any time heretofore made by me and I declare this only to be and contain my Last Will and Testament. 2. I NOMINATE, CONSTITUTE AND ApPOINT my friend, BARNEY GUMBLE, presently of Springfield, to be the sole Executor and Trustee of this my Last Will and Testament, but if he predeceases me, or dies at the same time as I, or surviving me, dies within Thirty (30 days of my decease, or should die before the final distribution of all the assets in my Estate, or is unable or unwilling to act as Executor and Trustee, then I NOMINATE, CONSTITUTE AND ApPOINT my friend, SEYMOUR SKINNER, presently of Springfield, to be the Executor and Trustee ofthis my Last Will and Testament and I hereinafter refer to them as my Executor and/or Trustee both in their Capacity as Executor and/or Trustee. I hereby declare thatthe term Executor and/or Trustee as used in my Last Will and Testament shall be read with such change of number and gender as required by the context. 3. I DIRECT my Executor to payout of and charge to the capital ofthe remainder of my Estate all my just debts, funeral expenses, costs of administration of my Estate, and all estate taxes, income taxes, succession duties, inheritance taxes or duties, and all other types of death taxes or duties whether imposed by the law ofthis or any other Province, state or jurisdiction whatsoever, that may be payable on or in connection with any property passing (or deemed to pass by any governing law on my death, or in connection with any insurance on my life or any gift or benefit given or conferred by me either during my lifetime or by survivorship or by this my Will or any Codicil thereto; and I hereby authorize my Executor to pay any such duties or taxes prior to the due date thereof and to commute the duties or taxes on any interest in expectancy. 4. I DESIGNATE my common-law partner, MAUDE FLANDERS, if she survives me for a period of more than thirty (30 days, as the beneficiary of the proceeds of any registered retirement savings plan, deferred profit sharing plan, registered retirement income fund, or any other pension benefits owned by me at the time of my death. If my common-law partner, MAUDE FLANDERS, predeceases me or fails to survive me for a period of thirty (30 days, the said fund or funds shall form part of the residue of my estate and follow the destination thereof. 5. I DIRECT my executor to consider, in relation to any amounts receivable (specifically including any item considered an amount receivable by the Canada Customs and Revenue Agency as stated in IT -212R3 or any successor Bulletin on the topic I may own at the time of my death, electing to either: (a (b file a separate return of income for my year of death within the time period prescribed by ss. 70(2 of the Income Tax Act; or transfer or distribute such amounts receivable in kind to the beneficiaries under this my Will within the time period prescribed by ss. 70(2 of the Income Tax Act.

4 -2-6. I DIRECT my executor to consider, in relation to income which has accrued to the time of my death from any proprietorship operated by me or partnership of which I am a member, electing to file a separate return of income for my year of death within the time period prescribed by ss. 150(4 of the Income Tax Act in relation to the accrued income. 7. I DIRECT my executor, prior to transferring any shares of Nova Scotia Limited, or any successor corporation which I may own shares in at the time of my death, to the beneficiaries under this my Will to consider: (a (b the winding-up of Nova Scotia Limited, and the filing an election under ss. 164(4 of the Income Tax Acttogether with my final income tax return; or the transfer of my shares of Nova Scotia Limited to a newly incorporated company in exchange for shares having substantially the same characteristics as my shares of Nova Scotia Limited, and subsequently causing the wind-up of Nova Scotia Limited, and filing a designation on the return of income for the newly incorporated company increasing the cost of the nondepreciable capital property received by the newly-incorporated company on the wind-up to the fair market value of the property at the time of my death pursuant to para. 88(l(d of the Income Tax Act. 8. I DIRECT my Executor to distribute any items of a personal nature, as I have directed in any written list attached to or with my Will. If! have left no such list, then as I have indicated my wishes during my lifetime, failing any such indication, as my Trustee in his discretion directs. 9. I GIVE, DEVISE AND BEQUEATH all of the shares in IDS Uniphase Inc. which I own at the time of my death plus the difference between Five Hundred Thousand Dollars ($500,000 and the fair market value, at the time of my death, of the shares in JDS Uniphase Inc. which I own at the time of my death unto the Public Legal Education Society of Nova Scotia for its own use absolutely. 10. I GIVE, DEVISE AND BEQUEATH all the rest and residue of my property, both real and personal, of whatsoever nature and kind and wheresoever situate, including any property over which I may have a general power of appointment, to my Trustee, UPON TRUST: (a To use his discretion in the realization ofthe remainder of my Estate with power to my Trustee to sell, call in or convert into money all of my Estate not consisting of money at such time or times, in such manner and upon such terms and either for cash or credit or for part cash and part credit as my Trustee may in his discretion decide upon, with power and discretion to postpone such conversion of my Estate or any part or parts thereof for such length of time as my Trustee may think best, and I hereby declare that my Trustee may retain any portion of my Estate in the form in which it may be at the time of my death (notwithstanding that it may not be in the form of an

5 -3- investment in which Trustees are authorized to invest trust funds and whether or not there is a liability attached to any such portion of my Estate for such length of time as my Trustee in his discretion deems advisable and my Trustee shall not be held liable or responsible for any loss that may happen to my Estate by reason of his so doing; (b To divide all the rest and residue of my Estate into divide the residue of my estate into three equal parts, for the benefit of my son, BARTHOLOMEW J. SIMPSON, his spouse or common-law partner from time to time, and any children he may have from time to time, my daughter,lisam. SIMPSON, her spouse or common-law partner from time to time, and any children she may have from time to time, and my daughter, MARGARET SIMPSON, her spouse or common-law partner from time to time, and any children she may have from time to time. Each part shall be transferred as set out in the following subparagraphs and used to establish trust funds to be held respectively in accordance with the provisions of subparagraphs I O( c, (d and (e for the benefit of those persons named above, such that each of the above-named groups has the benefit of one trust fund; but if all of the named beneficiaries of any above trust fund are then dead and have left issue them surviving and alive at the time ofthe death of the survivor of my wife and me, the share of my estate that would have been held in trust for those persons if they were then alive shall be held in trust for the benefit of their issue then alive in equal shares per stripes, and if they have not left issue them surviving and alive at the time of the death of the survivor of my wife and me, then the share of my estate that would have been held in trust for those persons if they were then alive shall be divided share and share alike among the remaining trust funds created by this subparagraph; (c To transfer one share referred to above to my Trustee in trust to create a trust fund known as the "Bart Simpson Family Trust" to be held by my Trustee, (referred to in this sub-paragraph as the "Bart Simpson Trustee" in trust for the benefit of my son, BARTHOLOMEW J. SIMPSON, his spouse or common-law partner from time to time, and any children he may have from time to time, pursuant to subparagraph I O(b in securities and other property authorized for the investment of the funds of my estate and to distribute such part or parts or all of the income therefrom and, from time to time, such part or parts or all of the capital thereofto said beneficiaries for their benefit as the Bart Simpson Trustee in his discretion considers appropriate having regard, among other things, to the following factors:- i my desire that my son and his family receive a sufficient amount of income to be able to maintain a reasonable standard of living; ii my desire that my son and his family have access to sufficient capital to be able to provide reasonable housing accommodation for himself his family or and for him, or them, to be able to acquire a business or

6 -4- investments that may reasonably be expected to be for the long-term benefit of himself and his family; iii i v minimizing the impact of taxes upon my son and his family and upon my estate; and providing funds reasonably required or advisable for medical, educational, occupational, or professional purposes of my son and his family; (d To transfer one share referred to above to my Trustee in trust to create a trust fund known as the "Lisa Simpson Family Trust" to be held by my Trustee (referred to in this sub-paragraph as the "Lisa Simpson Trustee" in trust for the benefit of my daughter, LISA M. SIMPSON, her spouse or common-law partner from time to time, and any children she may have from time to time pursuant to subparagraph 1 O(b in securities and other property authorized for the investment of the funds of my estate and to distribute such part or parts or all of the income therefrom and, from time to time, such part or parts or all of the capital thereof to said beneficiaries for their benefit as the Lisa Simpson Trustee in her discretion considers appropriate having regard, among other things, to the following factors:- i my desire that my daughter and her family receive a sufficient amount of income to be able to maintain a reasonable standard of living; ii iii iv my desire that my daughter and her family have access to sufficient capital to be able to provide reasonable housing accommodation for herself and her family and for them to be able to acquire a business or investments that may reasonably be expected to be for the long-term benefit of herself and her family; minimizing the impact of taxes upon my daughter and her family and upon my estate; and providing funds reasonably required or advisable for medical, educational, occupational, or professional purposes of my daughter and her family; (e To transfer one share referred to above to my Trustee in trust to create a trust fund known as the "Maggie Simpson Family Trust" to be held by my Trustee (referred to in this sub-paragraph as the "Maggie Simpson Trustee" in trust for the benefit of my daughter, MARGARET SIMPSON, her spouse or common-law partner from time to time, and any children she may have from time to time pursuant to subparagraph 1 O(b in securities and other property authorized for the investment of the funds of my estate and to distribute such part or parts or all of the income therefrom and, from time to time, such part or parts or all of the capital thereof to said beneficiaries for their

7 -5- benefit as the Maggie Simpson Trustee in her discretion considers appropriate having regard, among other things, to the following factors:- i my desire that my daughter and her family receive a sufficient amount of income to be able to maintain a reasonable standard ofliving; ii iii i v my desire that my daughter and her family have access to sufficient capital to be able to provide reasonable housing accommodation for herself and her family and for them to be able to acquire a business or investments that may reasonably be expected to be for the long-term benefit of herself and her family; minimizing the impact of taxes upon my daughter and her family and upon my estate; and providing funds reasonably required or advisable for medical, educational, occupational, or professional purposes of my daughter and her family; (t Any trust referred to in subparagraphs 10 (c, (d and (e shall terminate on the earliest to occur of:- i the distribution, in accordance with subparagraph 10 (c, (d and (e, as the case may be, of the entire remaining balance of income and capital of that trust fund; ii iii the death, following the death of the survivor of my wife and me, of the last beneficiary for whom such a trust fund is held, in which event the balance of that fund shall be distributed to the residual beneficiary or beneficiaries under their will as if it formed part of the remainder of the rest and residue of their estate; but failing any such testamentary provision by them the balance of that fund shall be held in trust on the same terms as are provided for in subparagraph 1 O(b and this subparagraph 1 O(t for their issue them surviving in equal shares per stirpes, but if any such trust would already have terminated by reason of this subparagraph 1 OCt, shall be paid to their issue then alive in equal shares per stirpes, and, failing any such issue, that fund shall be added to the trust fund held for my other beneficiaries or their issue under subparagraph 1 O(t or, ifthattrust has terminated, shall be paid to my other beneficiaries if they are then living or, if they are not, shall be paid to their issue then alive in equal shares per stirpes; in the case of a trust fund held for the issue of a deceased beneficiary of mine, twenty-one (21 years less one day after the death of the survivor

8 -6- of my wife and me, in which event that fund shall be distributed to the issue of that deceased beneficiary of mine who are then alive in equal shares per stirpes; and iv in the case of a trust fund held for the issue of a deceased beneficiary of mine, the death of their last surviving issue, in which event the balance of that fund shall be added to the trust fund held for my other beneficiaries or their issue under subparagraph 10(b or, if that trust has terminated, shall be paid to my other beneficiaries if they are then living or, if they are not, shall be paid to their issue then alive in equal shares per stirpes; (g (h Notwithstanding any other provision of this my Will, the beneficiary of any trust fund created by subparagraphs 10 (c, (d, or (e may, on seven (7 days written notice to the Trustee of any trust created by this my Will, original or substituted, at any time after reaching twenty-five (25 years of age, remove any Trustee( s and appoint any T rustee( s, including any beneficiary personally, as they determine. If any trust fund has more than one beneficiary, then the power granted by this paragraph may be exercised by unanimous consent of all beneficiaries of the trust fund once all beneficiaries have reached twenty-five (25 years of age; and in the event that no child of mine survives me for a period of thirty (30 days and has left no issue then surviving, then to transfer the rest and residue of my estate to my long time benefactor, MR. BURNS, of Springfield, for his own use absolutely. 11. UNLESS otherwise specified in this my Will, if any person shall become entitled to any share or shares in the rest and residue of my Estate in accordance with the terms and provisions of this my Last Will and Testament before such person shall have attained the age of Nineteen (19 years, then that to which each such person shall have become entitled shall be held and kept invested by my Trustee and the income and capital or so much thereof as my Trustee, in his absolute discretion, deems necessary shall be used for his or her benefit until such person attains the age of Nineteen (19 years. 12. I AUTHORIZE my Trustee to make any payment for any persons under the age ofnineteen (19 years to a parent or guardian of such person, whose receipt shall be a sufficient discharge to my said Trustee. 13. IN ORDER to carry out the provisions of my Will, I give my Trustee, or any trustee of a trust fund created under this my Will (included in the term "Trustee" for this purposes of this paragraph, the following powers to be used in the exercise of an absolute discretion at any time:

9 -7- (a (b (c (d (e (f (g I hereby declare that my Trustee when making investments for my estate shall not be limited to investments authorized by law for trustees, but may make any investments which my Trustee in the exercise of an absolute discretion considers advisable and my Trustee shall not be held liable for any loss that may happen to my estate in connection with such investments made by my Trustee in good faith. Without in any way restricting the generality of any other provision of this my Will, my Trustee, in their discretion, may form one or more corporations or holding companies to hold some or all of the funds of my estate and may invest in the common or preferred shares or other securities thereof such of the funds of my estate, including any funds held by my Trustee in trust pursuant to any of the provisions of paragraph 1 0, as my Trustee in their discretion consider desirable having regard to the welfare of and impact of taxation upon the various persons interested in my estate. Without in any way restricting any other power herein granted to my Trustee, my Trustee may take up any rights that from time to time are issued by any company in which my Trustee hold shares, and any additional shares so acquired shall be deemed to be investments authorized for the investment of the funds of my estate. My Trustee may use the voting rights attached or incidental to any securities forming part of my estate in the same manner as though my Trustees were the beneficial owners of those securities. My Trustee, in their discretion, may renew from time to time any endorsements, guarantees, or security contracts made by me and in force at the time of my death. IfI should own any real or personal property at the time of my death, I hereby authorize and empower my Trustee to sell any or all such property at such time or times and at such price or prices as my Trustee deems advisable in the exercise of an absolute discretion and to execute all such documents as may be necessary to vest title in any purchaser thereof. So long as any real or leasehold property forming part of my estate remains unsold, my Trustee shall be at liberty to let or lease the same from month to month, year to year, or for any term of years, and subject to such covenants and conditions as my Trustee shall think fit, to accept surrenders ofleases and tenancies, to expend money in repairs and improvements and generally to manage the property with a view to the sale thereof to give any options my Trustee may consider advisable.

10 -8- (h (i I hereby give my Trustee power to carry on any business, whether incorporated or otherwise, which I may own, control, or in which I have an interest at the date of my death, for such length oftime as my Trustee in the exercise of an absolute discretion considers to be in the best interest of my estate, and to do all things necessary or advisable for the carrying on, incorporation, winding up, amalgamation or disposal of any such business or interest to the same extent as I could do ifliving, and my Trustee shall not be responsible for my loss which maybe occasion to my estate as a result of exercising these powers. If my Trustee, in carrying out any direction to carry on a business owned or controlled by me or in which I have interest considers it necessary in the exercise of an absolute discretion to engage a corporation, person or persons to carry out some or all of the business functions, I authorize my Trustee to employ such corporation, person or persons and to compensate such corporation, person or persons out of the income from the business or out of my estate, in such manner as my Trustee in the exercise of an absolute discretion considers appropriate. G My Trustee may borrow on behalf of my estate such amounts as my Trustee considers appropriate and may give security therefore out of the assets of my estate. (k (I My Trustee may at any time make, or not make, any election, determination or designation, or do or not do, any other act or deed, or exercise any discretion or authority referred to in the Income Tax Act which my Trustee considers in the best interest of my estate and my beneficiaries. My Trustee may sell to any member of my family including any who may act as an Executor or Trustee hereunder any part or parts of my estate, real or personal, either at public auction or by private contract, and such sale shall be at such price or prices and subject to such terms and conditions, and either for cash or credit or for part cash or for part credit, as my Trustee considers fair and reasonable. 14. I ApPOINT as Guardians of my children during their minority the sister of my late wife, SELMA BOUVIER TERWILLIGERBOUVIERMcCLURE, of Springfield, in the Province ofnova Scotia. 15. No ACTION shall lie against my Trustee to compel them to exercise discretion on any matter upon which I have herein directed that discretion may be exercised by my Trustee, nor shall any action lie against my Trustee in respect of any claim that any person may have against him or her by the reasonable exercise of that discretion.

11 ALL BEQUESTS under this my Will, of both capital and income, shall become and be the private property of the respective beneficiary when received and, together with any property substituted therefor by one or more substitutions and any income generated thereon or on any such substituted property, shall be excluded from any community or other sharing of property arising from marriage, and the share of any beneficiary hereunder shall be and remain his or her private and separate property free from control by his or her spouse and shall not be liable for the debts of his or her spouse or for any business venture of his or her spouse. 17. FOR THE PURPOSES of this my Will, the term "child" and any derivative of that term, shall have the same meaning as ascribed thereto by the Income Tax Act. 18. IN ADDITION to the foregoing, if any child or other descendant of mine legally adopts a child, the adopted child, for all purposes of this my will, shall be deemed to be the natural-borne child ofthat adopting parent, and, in particular, but not so as to restrictthe generality ofthe foregoing, the terms "child" and "issue" when used in this my will shall be deemed to include an adopted child. A.D., IN WITNESS WHEREOF I have hereunto subscribed my hand this 1,I day of January, SIGNED, PUBLISHED AND DECLARED by the said HOMER J. SIMPSON as and for his Last Will and Testament, in the presence of us, both present at the same time, who at his request and in his presence and in the presence of each other have hereunto subscribed our names as witnesses. MO / SlIYxla]v Maurice Szyslak c/o Moe's Tavern, Springfield Businessman Apw NahaM:qJ~e:t"'tlorv Apu Nahasapeemapetilon c/o Kwik-E-Mart, Springfield Businessman tlo1nev T. Sbm'N' CV'ohA HOMER J. SIMPSON

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