The Story of Martha and Henry

In Alberta, the Wills and Succession Act R.S.A. came into effect on February 1^st 2012 replacing the Wills Act, Intestate Succession Act, Survivorship Act and Section 47 of the Trustee Act. It is now the primary statute in Alberta that deals with wills, intestacy, survivorship, dependent support, beneficiary designations and other succession issues.

Section 13 of the Act states the following:

• An individual who is 18 years of age or older may make, alter or revoke a will if the individual has the mental capacity to do so.

“Mental capacity” is not defined in the Act but has universally been accepted as the penultimate consideration in determining whether or not a person has the ability to make a will or whether or not a given will is indeed valid. This is referred to among legal circles as “testamentary capacity”.

There is no standardized test for determining testamentary capacity and although it is suggested that lawyers are trained to assess mental capacity for the purpose of taking will instructions and before having someone sign a new will, my own experience would suggest that such “training” is limited and more imaginary than real. Clearly, most lawyers understand the necessity to assess the client’s ability to give will instructions but putting this into practice can be tricky and is more of an art than a science. READ ON

Effective Board Governance and the Role of Committees

The structure of a Board and the planning of the Board’s work are key elements to effective governance. Establishing committees is perceived to be one way of better managing the work of the Board, thereby strengthening and enhancing the Board’s governance role.

Historically, it has been common practice for Boards, using a traditional governance model, to strike various standing committees to deal with major functional areas of the organization.  Each Board committee would work closely with the management team or staff member responsible for this functional area. They would work together in addressing issues, solving problems, developing internal policies and establishing plans to monitor performance and compliance within each functional area.

For example, it was commonplace for a Board to establish a human resource or staffing committee, who would work with the HR manager to develop HR policies including hiring, conduct, discipline, compensation and performance. It was expected that the work of the committee would “filter” up to the Board and from time to time the Board would be asked to approve some high level policies. For the most part, however, the establishment of work related policies was left to the committee to approve and for management to implement and the work of the committee was largely unseen by the board, except for approving perfunctory minutes from the committee meetings and receiving a brief verbal report from the chair of the committee at the Board meeting.READ ON