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Hybrid Wills

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Hybrid Wills

Postby Pinskylaw.ca » 17 Dec 2016, 11:55

There are a number of amphibious gifts or exceptions to the testamentary transfers which exhibit some of the elements normally associated with each of the basic types of transfers. For the most part, these non-probative testamentary dispositions allow for alternatives to wills, avoiding the formalities of will legislation, while at the same time permitting the donor to enjoy the benefit of the property during his or her lifetime. There are many reasons for using for using alternatives to wills, particularly for purposes of estate planning with emphasis on the reduction of taxes and probate fees. The focus here is mainly on the interface of these mechanisms with wills but all of them seek to effect a transfer of property outside the estate of the deceased. The transfer of property usually depends upon the death of the donor for full effect but is not testamentary.

The dominatio moris causa is an exception to the rule requiring testamentary gifts to conform to the formalities of the applicable wills statutes. It is like a will because the donor may revoke it at any time before death because it is conditional on the death of the donor and because it is subject to similar doctrines such as lapse. Unlike a will, however, to be valid it must be made in contemplation of death from an existing peril. If the donor perceives a peril from some particular illness or special danger, a donatio mortis causa is revoked automatically by the donor's recovery from that illness (or the passing of the danger) without any other act of revocation such as is required in the case of a will.

The rule of survivorship for property held jointly ensures that the property will pass directly to the survivor and that it will not form part of the estate of a deceased. This rule provides a basis for an alternative mechanism to a will for making a gift. The most common example is the joint bank account. During his or her lifetime, the donor establishes a bank account in the joint names of his or herself and the intended beneficiary. The donor can enjoy the benefit of the money in the account, and the gift is also, thus, defeasible by the donor during his or her lifetime. Upon death, the balance in the account is the property of the surviving beneficiary. Difficulties may arise because there must be evidence to indicate that the donor intended to make a gift to the beneficial interest in the funds remaining in the account at his or her death. The issue is more acute because there is a presumption of resulting trust at common law where not altered by statute. There has always been the reason between this presumption and the presumption of advancement in the case of testamentary dispositions.
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