The Dead Files

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 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.

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!