By HONEST ALF Dick – the Little Guy Lawyer

More “bits and pieces” about Wills.

I’ve told you that a Will has to have witnesses – my bad - I am correct in general terms but (in law, there’s always a “but”) it is possible to make a valid Will in Ontario without witnesses if the Will is “wholly” in the Testator’s own hand-writing and signature.  It’s call a “holograph” Will.

Now, I’m not suggesting that you prepare one just to save money – I’m told that one of the favourite toasts at lawyers’ dinners is to the homemade Will because it generates so much litigation due to vague and contradictory language – but a holograph Will can be useful in certain situations.

I recall one case where a farmer was pinned under his overturned tractor, way out in the field where nobody could see or hear him, and, knowing that he was dying, he scratched a holograph Will into the paint of the tractor fender, and it was accepted as a valid Will.  Can you imagine the Judge’s reaction when they brought the tractor fender into Court as an Exhibit?

So, while this is a possibility, don’t wait until you are pinned under a tractor to draw your Will – go see your lawyer.  He or she won’t bite you, I promise.

By Barrie Hayes, Partner 

As our society grows  older the increasing incidence of dementia and Alzheimer’s have led to a corresponding increase in  the court appointments of guardians of property and guardians of the person. 

In a situation where a person, because of the onset of mental illness, dementia or otherwise becomes incapable of managing his or her property or of making decisions involving his or her health care unless the person, while he or she was capable, has executed a continuing power of attorney for property or a power of attorney for personal care, the incapable person will require a court-appointed guardian of property to manage his or her financial affairs and a guardian of person to make decisions of personal care on behalf of the incapable person. 

Anyone can make application for appointment as a guardian of property and  guardian of the person although the incapable person’s spouse and family are the most frequent applicants. More than one person can apply for these guardianship appointments. 

The presumption laws that a person is presumed capable to  manage his or her affairs or to make care decisions unless evidence  satisfies the court on the balance of probabilities that the person is incapable. An affidavit from the incompetent person’s physician or the report of a certified capacity assessor are  commonly accepted as evidence confirming incapacity. 

The person applying for appointment as guardian of property will be required to file an affidavit which among other issues ;addresses the factual background of the incapable person, whether the applicant is requesting a judgement dispensing with the requirement that the applicant post a security bond and confirming that the incapable person has been informed of the nature of the application. 

The applicant is also required to include as an exhibit a completed management plan which details the incapable persons assets, describes the care arrangement to be made for the benefit of the incapable person , the cost of such care arrangement and details the investment plan the applicant has made for the benefit of the incapable person. 

The appointment of guardianship of property provides the guardian with the authority to do anything in respect of property that the incapable person could of done, if capable, except make a will. The guardian of property is a fiduciary whose powers and duties are to be exercised and performed diligently with honesty and integrity and in good faith for the incapable person’s benefit. 

The guardian for property is required to keep careful accounts in administering the incapable person’s financial affairs and to have such accounts reviewed and approved by the court from time to time. 

The application for the appointment of a guardian of the person is similar in form to the guardianship of property but it’s focus is on whether the incapable person can make appropriate decisions for his or her care. The order appointing the guardian of the person will define the scope of the decisions for personal care of the incapable person to be made by the guardian of the person. 

The guardian of the person is required to execute his or her duties diligently and a good faith for the best interest of the incapable person. 

In situations where a person becomes incapable and no person is prepared to be appointed guardian of property or personal care for the incapable person the Office of the Public Trustee and Guardian will become the statutory guardian for the incapable person.

By Barrie Hayes, Partner

Anyone who has an employment pension should, following a separation, discuss with the pension plan the legal effect of the separation or a divorce on the status of the beneficiary the pension plan holder has designated on the pension.

The recently decided case of Carrigan v Quinn warns that beneficiary designations in pensions must be changed following separation to avoid potentially unintended results. In the Carrigan case Mr. Carrigan, the pension owner, was married in 1973 and separated in 1996. The Carrigans, following separation, did not enter into a separation agreement and were never divorced. Mr. Carrigan, in a will dated 1986 which he never changed ,named Mrs. Carrigan his estate trustee and sole beneficiary of the residue of his estate.

In 2000 Mr. Carrigan commenced a common-law cohabitation with Mrs. Quinn which relationship continued until Mr. Carrigan died in 2008.

The issue at trial was who, between Mrs. Carrigan and Ms. Quinn was entitled to receive Mr. Carrigan’s pension death benefit.

The trial judge found that at the time of Mr. Carrigan’s death the statutory definition of “spouse” in the Pension Benefits Act included both Mrs. Carrigan because she was legally married to Mr. Carrigan and Mrs. Quinn because she was living with him in a conjugal relationship for more than three years prior to his death.

After a review of the pension benefits act the trial Judge held that Mrs. Quinn was entitled to receive the pension death benefit.

Mrs. Quinn appealed the trial decision and, on appeal, the Court of Appeal held that Mrs. Carrigan and her daughters were the proper designated beneficiaries for the pension death benefit.

There was a dissenting judgment in the Court of Appeal decision which favored Ms. Quinn as the proper designated beneficiary. There has been much legal discussion following the decision questioning why the court did not declare both Mrs. Carrigan and Ms. Quinn co-beneficiaries of the death benefit. I suspect there may be future legislative changes to the Pension Benefit Act addressing the issue.

By Barrie Hayes, Partner

Mental or cognitive capacity is an issue which arises not infrequently in estate practice. At law, one is presumed capable unless and until this presumption is rebutted. One’s capacity may fluctuate with any given decision or task in question and from time to time.

The legal standard for capacity varies in relation to the legal task being undertaken by the person in question.

• Capacity to manage property 

This legal task arguably requires the highest level of capacity namely the ability to understand the information that is relevant in making a decision in the management of one’s property; and the ability to appreciate the reasonably foreseeable consequences of the decision or lack of a decision.

• Capacity to make personal care decisions

This task requires the ability by the person to understand the information that is relevant to making a decision relating to his or her own health care, nutrition, shelter, clothing, hygiene or safety; and the ability to appreciate the reasonably foreseeable consequences of the decision or lack of decision.

• Capacity to grant and revoke a power of attorney for property

This task requires that the person have knowledge of what kind of property he or she has and its approximate value; that the person demonstrate awareness of obligations owed to his or her dependents; that the person have knowledge that the attorney designated will be able to do on the person’s behalf anything in respect of property that the person could do if capable, except make a will, subject to the conditions and restrictions set out in the power of attorney; that the person have knowledge that the attorney must account for his or her dealings with the persons property; that the person have knowledge that he or she may, if capable, revoke  the continuing power of attorney; that the person appreciate that unless the attorney manages the property prudently its value may decline; and that the person appreciate the possibility that the attorney could misuse the authority given to him or her.

• Capacity to grant and revoke a power of attorney for personal care

This task requires that the person have the ability to understand whether the proposed attorney has a genuine concern for the person’s welfare; and that the person appreciate that the person may need to have the proposed attorney make decisions for the person.

• Capacity to make a will, revoke a will, make a codicil and make a testamentary designation

These tasks require the person to demonstrate an ability to understand the nature and effect of making a will revoking same or making a codicil and testamentary designation; the ability to understand the extent of the person’s property in question; and the ability to understand the claims of persons who would normally expect to benefit under a will, codicil or testamentary designation of the person.

By Honest ALF Dick – the Little Guy Lawyer

Okay, we’ve talked about “what is a Will?”, we’ve talked about what a Will deals with and about its benefits and we’ve talked about what your lawyer needs to know about you and your assets. 

Now, let’s talk about some interesting (at least to me) bits and pieces about Wills

First about age:

Basically, you have to be over 18 years of age to make a Will but (as always with the law) there are exceptions.  Did you know that if you are under 18 years and are, or have been, married, you can make a Will?  I guess there may be some people out there who get married when they are legally minors – I doubt if there are many – but they can make a Will. 

A related situation is where you are under 18 and are “contemplating” marriage and if your Will says so (and if you do in fact marry that person), you can make a valid Will in Ontario. 

Maybe you better keep an eye on your under-age son or daughter – they may be contemplating! 

A member of the Canadian Forces can make a Will while under 18 – and so can a “mariner or seaman” (I guess that includes a “seawoman”) while at sea or in the course of a voyage.  Maybe that’s all the more reason to watch that underage child when she or he wants to go on a boat ride! 

Oh, by the way, that under age person who made that valid Will can also revoke it while under the age of 18 years.  That makes sense.

by Honest Alf, the Little Guy lawyer

This is a multi-part series - please read Part 1, Part 2 and Part 3 before reading this post.

“Now Is The Hour” as that old song goes – not to say “goodbye” but rather to get in to see your lawyer about preparing a Will. What do you have to do?

Basically, not a great deal.

If you are married, take your spouse with you because you won’t be able to withstand his or her cross-examination of you when you get home if you try to do it alone. The spouse should have a Will too and it’s more efficient for the lawyer to explain everything once to the two of you – besides, the lawyer will have to meet the spouse at some point in time if you try to give Will instructions on his or her behalf, just to make sure that the spouse agrees with what has been prepared.

Many lawyers like to review with you, in general terms at least, the nature, value and location of your assets – I know, I know, I did say that the Will deals with what you own at your death so why is it relevant to take about your current assets?  Well, you may have a villa in Spain, or a house in Florida – you may have an RRSP or life insurance  - and the lawyer might be able to help you better understand what goes to whom (and at what tax cost) on your death, if he or she has a good idea of your financial situation.

And that leads me to another point – tell your lawyer about your family situation. Are you in a second marriage? If so, is there a Marriage Contract? Do you have disabled children or other persons who are to be beneficiaries? If so, how about a Henson Trust?

The more you tell the lawyer, the better service you will receive – remember, what you tell your lawyer is confidential and he or she must not reveal it to anyone else. For once, you can tell your lawyer “keep quiet for a change” and he or she has to obey!

by Kathryn Whitehead, Associate

When helping clients with his/her estate plan, it is not uncommon to discover assets may be located outside of the Province of Ontario in a foreign jurisdiction(s).  Various issues can arise from having assets abroad, and lots of planning is required to ensure foreign owned assets are dealt with according to your wishes.

Most clients deal with their foreign and domestic assets in one will.  In these cases, individuals will visit their lawyer in their primary place of residence and draft a will that applies to all their assets, regardless of where they are located.  A will created in one jurisdiction and purporting to distribute assets located in another, may or may not be valid.  Validity will depend on whether it’s accepted pursuant to the laws of the jurisdiction in which the foreign asset is located.  For example, if Joe Smith owned a house in Barrie and a Condo in Florida, he may have his lawyer in Barrie draft a will that sets out his wishes for both the Barrie and Florida properties. His wishes for the Florida Condo will only be given effect if the will was drafted in accordance with Florida laws, which is unlikely if the Barrie Lawyer is unfamiliar with Florida law. 

Another approach is to create a separate will for each of the foreign-owned assets. Your lawyer will have to ensure that each will complies with the laws of the jurisdiction where the particular foreign asset is located.  This may require having your lawyer consult additional legal counsel in the particular jurisdiction to draft, or assist in drafting, the multiple wills. Mr. Smith, for instance, would need a Florida will (drafted in accordance with Florida laws) to sort out his wishes for the condo, and an Ontario will (drafted in accordance with Ontario laws) to sort out all his Ontario assets.  This can be a costly and complicated way of dealing with foreign assets in estate planning. 

A much more efficient alternative is to have your solicitor draft an ‘International Will’.  Ontario is party to the Convention Providing a Uniform Law on the Form of an International Will, (also known as the Washington Convention). Under Ontario’s Succession Law Reform Act, if a will is made in accordance with the rules prescribed by the Convention, and both the relevant jurisdictions are contracting parties, the Will is valid as between those parties regardless of where it was made, the location of the assets, or the residence of the testator.  Contracting parties include (but are not limited to) most Canadian provinces, the United Kingdom and the United States of America. This means that Mr. Smith could draft one international will, dealing with all his assets (wherever located), and so long as the foreign assets were located in a contracting party to the Convention, his wishes would have effect in that jurisdiction. 

Depending on where your foreign owned assets are located, an international will may be an estate planning tool you should consider. Did you recently purchase that Florida condo?  A summer cottage in Newfoundland?  Have investments in the UK?  If so, speak with your solicitor about whether an International Will can address your estate planning needs. 

By Honest Alf, the Little Guy Lawyer 

Progress is being made – now you know what a Will is and what it can do for you – but have you ever actually looked at one of these things? 

In olden days, a Will might be one or two pages but now they run 6, 7,  8 or more pages – I tell my friends that “A Will makes good bedtime reading because it will put you to sleep in no time”. So, why all the verbiage? 

The part of an ordinary Will where you appoint the Estate Trustee (the “Executor” to many of us) and set out your gift plan usually may take two or three pages – if you get into fancy Wills with a lot of Trusts and Insurance Designations, you’ll have far more pages – because I’m talking about the “little guy/girl” Will that most of us use. 

The extra pages beyond that contain a lot of guidelines, directives and powers that are there to help the Estate Trustee do his or her job. I call it “the Tool Box” and I know that not every tool is going to be needed in every estate but it does no harm to have all the “tools” available. Remember what I told you about the Will “speaking as of the day you die”? Good for you – we don’t know when you will die  nor do we know what your circumstances will be at death – who knows, you might have won the lottery and have pots of money to deal with at your death - and your Estate Trustee will thank you for furnishing him or her with a full box of tools. 

Therefore, don’t worry about all the wording – you are not paying the lawyer  by the word (although, as a lawyer, I sometimes wish I was so paid!) and so, I think there is merit in this motto “when in doubt, spell it out!”.

By Tracey Rynard, Associate

Many married couples mistakenly assume that if they don’t have a Will their spouse will, by default, inherit their estate. As with most things it is dangerous to ass-u-me.

The law governing intestacy (dying without a valid will) in Ontario  is stated in the Succession Law Reform Act (the “Act”). Legally married spouses of an intestate deceased with children are entitled to a preferential share of the estate only. That preferential share is equal to $200,000 plus either ½ of the remainder (if one child) or 1/3 of the remainder (if more than one child). To further complicate matters, the spouse of the intestate may also apply for equalization under the Family Law Act.

Common law families are increasingly common (pun intended) in Ontario. Though much law has developed to recognize common law spouses and to provide the same benefits to those couples as those legally wed, it is a reality that, in Ontario, common law spouses do not have rights to their deceased partner’s estate. Therefore, if you have a common law spouse and do not provide for them in a valid will, the common law spouse will not inherit under the Act. In the case of a common law couple with children, the children will inherit their deceased parent’s estate equally and the common law spouse is statutorily entitled to nothing.

Although a dependent common law spouse can apply to the court for a support award, this can be a time intensive and expensive process. In situations where the couple has cohabited for a lengthy time, spouses may be able to argue for ownership of property based on trust principles. For example, a common law spouse who contributed towards a home through mortgage or other bill payments may have a claim for a constructive trust, however the onus is on the surviving spouse to prove the contributions. Again this is a long and expensive proposition.

These difficult situations can become even worse where one of the common law spouses is still legally married to a previous spouse. Until legally divorced, a separated spouse is still a spouse under the Act and will be entitled to the preferential share of their separated spouse’s estate (or the entire estate if there are no children).

Same sex couples  are caught by the Act, as the Act defines a ‘spouse’ as two persons who are married to each other.

It is doubtful that a caring spouse would want to put their partner, their estate and their other beneficiaries through a protracted court battle. With a properly drafted and prepared Last Will and Testament all of these adverse consequences can be avoided. 

By Alf Dick, Honest Alf - the Little Guy Lawyer

(2nd in a series of 4 blog posts)

Okay, so you are convinced you need a Will (if not, please see Part 1!) – but you might ask” “what will it do for you and what will it cost?” 

First of all, you have to remember that a Will speaks as of the day you die, not the day that you sign it, and this means that it deals with the assets that you own on the day of your death. Obviously, if you know exactly when you will die and exactly what you will own on that day, preparing a  Will would be pretty simple. Since we don’t have such precise information, a Will must be worded in somewhat general terms – for example, “any residence which I own at my death” although it can also deal with specific items that you are reasonably sure that you will own at your death, such as a specific life insurance policy. Because the Will speaks as of your date of death, it can be changed by you at any time during your lifetime provided that you are mentally capable, and it is common advice that a person review his or her Will every 5 to 6 years in order to make sure that it deals with changes in your life. 

A major benefit of having a valid Will is the fact that you have appointed an Estate Trustee (we used to call this person “the Executor”) who has power to deal with your estate immediately upon your death – an Estate Trustee needs no Court Order in order to administer your assets and this can be a cost saving for your Estate. 

What else does a Will do for you? It makes sure that your assets are dealt with in accordance with your wishes – this is the “gift plan” – rather than have government legislation do it for you. And that gift plan can be as simple or as complicated as you desire. 

And this brings us to the cost of a Will. Of course, this will vary from one lawyer to another but it is possible to have one done for a few hundred dollars but more complicated Wills involving such things as Trusts or Insurance Designations will be more expensive. However, a Will properly prepared by an expert, such as a lawyer, can, in the long run, save money and perhaps taxes for your beneficiaries.

You can buy a Will kit and prepare your own Will but it’s like doing your own plumbing at home – you had better know what you are doing. It may be cheaper in the short term but, if you don’t do it correctly, you could cost your Estate a lot of money in legal expenses if its wording is vague or contradictory because, in that case a judge may have to decide what your Will really says. Our advice? Seek out an expert – a lawyer with experience in drawing Wills.

Does a Responsibility  to pay support survive the death of the support Payor?

Barrie M. Hayes, Partner

Part 4 of the Succession  Law Reform Act ("SLRA")  answers this question in the affirmative.

The SLRA provides that in the event that a person dies, with or without a will, in circumstances where the deceased has not made adequate provision for the support of a dependent,  the dependent may initiate a proceeding against the estate for an adequate provision for support.  The legislation  does not contain a definition of what constitutes  an adequate provision.

Persons entitled to claim this relief are all those who, at the time of the deceased's death, the deceased had an obligation to pay support for.

A dependent can be a spouse, married or common law (cohabiting  for at least three years or in a relationship  of some permanence from which a child or children were born), a same sex partner, a parent, a child or a sibling. 

The claim for support must be made within 6 months from the date of the issuance of aCertificate of Appointment  of Estate Trustee, with or without a will.

The legislation requires the issue of support entitlement  to be dealt with on a two-step basis: 

1. The court must determine that the deceased did not make adequate provision for the proper support of the dependent.
2. The court must determine what amount of support is adequate in the circumstances.

The legislation  sets out a number of factors that the court should consider in determining the issue of dependency. 

The main difference in calculating the amount of support between a claim for support when the support payor is living vs. support under the SCLRA is, in calculating support  where the support payor is living the support payor's income from all sources is the consideration  examined.  The amount of support under the SCLRA is based the value of the assets of the deceased's estate.

The income and assets of the dependent claiming support are also examined  in considering the adequateness  of support.  The court has broad discretion in arranging for the provision of support. The court can fix an amount of support and suspend the distribution  of assets in order that the estate assets continue to generate income for support purposes. The court can set aside certain assets to be held in trust for the benefit of the support claimant for so long as he or she lives. The court can transfer title to a portion or all of the estate assets.

The legislation, in determining  the extent of the deceased's estate for the purpose of payment of support directs that assets which would not normally fall into the deceased's estate (ie: life insurance, joint property with right of survivorship,  gifts mortis causa (death bed gifts)) form part of the deceased's estate in determining the amount of support.

By Tracey Rynard, Associate

Many times I have been contacted by children or friends of elderly people in a panic. “The doctor says my (mother/father/favourite aunt/uncle/friend) is incapable. They don’t have a will, what do I do now????”

Since they have already called a lawyer, we can skip directly to Step Two, stop panicking.

What the doctor means when he says someone is incapable is not the same thing as being incapable to make a will. In fact, since capacity is decision, time and situation-specific, capacity itself is difficult to pin down. There is no such thing as being globally “capable”. There is no test to determine one’s general capacity.

There are as many different tests for capacity as you can derive a reason for testing for capacity, including: capacity to manage property, to make personal care decisions, to make a power of attorney for property or health care and to revoke one or the other, capacity to contract, to gift, to make a  will, to revoke a will to create a trust,  the capacity to marry, to separate and to divorce. Each test is different.

As an aside, the test of capacity to marry has a lower standard than the test for capacity to make a will but marriage revokes prior wills therefore a gentleman ( such cases seem to involve a disproportionately high percentage of men) potentially could find themselves married and intestate.

Some capacity tests are governed by legislation (the Substitute Decisions Act) and some are governed by the common law. Another issue with capacity is that it can vary. A client may be incapable of making a will on Tuesday morning but fully capable of doing so on Wednesday night.

A doctor or other health care practitioner may assess whether or not a patient is capable of consenting to health, however, the test for capacity to make a will should be completed by a lawyer trained in that area of law. If there is some doubt a certified capacity assessor may be consulted (another topic for another day).

The test which a doctor may use on to determine capacity is the Mini Mental State Examination, the fourth question of which is “can you spell WORLD backwards?” (the title hopefully makes sense to you now).  Although the MMSE, as it is known, is a useful screening tool for detecting potential cognitive issues, the assessment of actual decisional capacity of the will client is the responsibility of the lawyer consulted.

By John Cockburn, Partner

 Question:        Is it possible to make a new Will, prior to my getting married, that would survive my new marriage?

 Answer:          A Will is automatically revoked by marriage, except if, in that Will, you specifically declared that it is made in *contemplation* of the marriage, (i.e., names your bride to be), or if your new spouse elects to take under the Will, by documents signed and filed within one year of your death at the Office of the Registrar, the Will will survive to that extent.

Of course the odds are that if you made the Will long before your marriage, you may not have named your current spouse as the beneficiary of the major portion of your Estate and therefore, would probably have an intestate situation.

By Alf Dick, Honest Alf – the Little Guy Lawyer 

(First in a series of 4 blog posts)

I once told a friend that he needed a Will and he said: “What’s a Will”? I thought: “Oh, oh – let’s go back to the beginning”. 

Simply put, a Will is a document in writing but it is kind of special because it deals with a special situation, namely, the death of the author. Because the author is no longer around when the Will is activated – ok, did I forget to tell you that a Will is dormant and not operative until the author (known as the Testator or, for the ladies reading this, the Testatrix) dies? – the law has some interesting technical requirements before a Will becomes “legal” and in force. 

First of all, it has to be signed by the Testator but only in a certain way and in a certain place. With very few exceptions (which I will talk about later), a Will requires at least two witnesses to be there, both at the same time, to watch the Testator sign – that’s the “certain way” – and all of the witnesses must sign at the end of the Will – that’s the “certain  place”.  And those witnesses must sign the Will in the presence of the Testator. 

It gets better. If the Will has more than one page, each page should be initialed by all three of them (usually it’s three although it could be more if you want) and any changes (for example a strike out of any word) in the body of the Will must be initialed by those same three people. As a result, if,  on the death of the Testator, a Will is produced for him and it contains changes that were not properly initialed, that change will be ignored. So, don’t mess with a properly signed Will. 

And who can be a witness? Just about anybody over 18 years of age can be a witness but if the witness or the witness’s spouse is also a beneficiary (receiver of a gift) under the Will, the gift to that person fails. What’s the moral of the story? Don’t try to sign a Will on your own – see a lawyer!

 By Barrie M. Hayes, Partner 

 Continuing Powers of Attorney for Property are one of the documents frequently executed in estate planning practices.

The majority of Continuing Powers of Attorney for Property have no restriction in the authority given to the Attorney for the management of the grantor's property. As such, the Attorney, when acting pursuant to an unrestricted Power of Attorney for Property, can administer the grantor's property in virtually any fashion (i.e.: open and close bank accounts/maintain and sell house or vehicle/pay bills/collect debts/deal with investments).

The only limitation in authority is that the Attorney cannot make a will on behalf of the grantor.

With this broad legal authority, however, comes several legal obligations and responsibilities for the Attorney. In administering the grantor's property, the Attorney must act in relation to the said property as a fiduciary, whose powers and duties shall be performed diligently, competently, with honesty and integrity and in good faith for the grantor's benefit.

Decisions made in relation to the grantor's property must consider the grantor's personal comfort and wellbeing.

An Attorney who does not receive monetary compensation for managing the grantor's property must exercise a degree of care, diligence and skill that a personal of ordinary prudence would exercise in the conduct of his or her own affairs.

An Attorney who, however, receives monetary compensation for managing the said property must exercise a degree of care, diligence and skill that a person in the business of managing the property of others is required to exercise.

An Attorney can be liable at law for damages resulting as a breach of his or her duties.

The Attorney can be required to provide a financial accounting for the period of time the Attorney has administered the grantor's property. The Attorney will be required, at law, to keep accurate accounts and to present the accounts in a specific, detailed format. The accounts must clearly show how all the monies or assets received have been disbursed.

By Tracey Rynard, Associate

It often seems that talking about preparing a  will to most people ranks somewhere between  getting a tooth pulled and medieval torture. Personally, I don’t talk “shop” in my spare time as generally only other estate planning professionals care to chat socially about the legal implications of death and dying.  Come to think of it, I don’t often mention my career choice to new acquaintances at first as it usually immediately spawns the inevitable, “have you heard this one? [insert lame lawyer joke]” to which the answer, if you know any lawyers, is always yes, we have heard every lawyer joke. There are no new lawyer jokes. Trust  me.

 In my personal experience, it is unfortunate how many otherwise organized and responsible people choose to put off estate planning until it is too late.  My suspicions were confirmed in a recent survey reported in the Epoch Time: Majority of Canadians Do Not Have a Signed Will, Survey Shows.  56% of Canadians surveyed reported having no will  (even worse, 71% reported not having any powers of attorney established but I will leave that topic for another post). The top reasons for not completing estate planning? Believing they were still “too young,” not knowing how to get started, or viewing the process as too expensive.

 I know this will be difficult to accept (coming from a lawyer and all) but please do not draft your own will. An experienced estate planning practitioner is worth their fee. They will not only assist you in avoiding mistakes but will discuss with you issues which you may not even consider on your own. For example: 

• a will is revoked by marriage, or;
• if you die without  a will your spouse does not automatically inherit your entire estate, or;
• an RESP will be dissolved on the death of the subscriber and the grant money must be returned, or;
• a minor’s gift will be paid to the Ontario government, in trust, until the minor is 18.

For many reasons, preparing a last will and testament is a great example of an instance when you don’t want to be “penny-wise, pound foolish.”

 Groucho Marx’s famous last words  were  “Die, my dear? Why, that’s the last thing I’ll do!”

Unfortunately for him and for all of us alive today, death is the inevitable consequence of living.

Be prepared!

Kathryn Whitehead, Associate

Welcome to The Dead Files – a friendly forum for the living (since it is already too late if you are deceased) to discover the truths surrounding estate planning, estate administration and estate litigation!

The Dead Files is a group collaboration of the Wills & Estates practitioners at Barriston LLP.  The authors of The Dead Files like to think of ourselves as an intelligent, knowledgeable, and laughable group of individuals who live life to the fullest and enjoy helping others.   Members of the blog consist of (in alphabetical order): John Cockburn, George Corn, Jennifer Craddock-Jones, George Craig, Alfred Dick, Barrie Hayes, Tracey Rynard, and myself, Kathryn Whitehead.   

Our goal is to share practical and useful information that will help explain the mysteries and hidden forces in the Wills and Estates legal arenas.  We will explore and investigate, in a broad sense, such areas as: Primary, Corporate, and International Wills; Trusts, such as Spousal, Family and Henson; Powers of Attorney for Property and Personal Care; Certificates of Appointment for Estate Trustees with and without a Will; Estate Trustee duties and liabilities; Passing of Estate Accounts; Will Challenges; and Dependent’s Relief claims.

We hope you will enjoy The Dead Files and discover strategies to help combat the veiled powers that may impede estate planning efforts.