Local lawyer William Tatham says “complications that can arise in the absence of a will are endless”
By Kathy McGrath
March is tax season, which brings to mind the old saying by Benjamin Franklin: Nothing is certain in life except death and taxes. We have accountants to help us with the taxes, but what about end-of-life matters?
A 2023 Angus Reid Poll revealed that half of Canadians do not have a will; a statistic that has been fairly steady through the years. The death of a friend or family member is upsetting enough, but it’s worse when the deceased does not have a legal will. Loved ones are left scrambling to figure out how to handle the estate.
The Ontario government states that without a will, the law determines who can apply to the court to manage your estate, who is entitled to it, and how much they can receive.
“The complications that can arise in the absence of a will are endless,” said local lawyer William Tatham. “You have situations where people are unable to sell the house in order to get money that’s required to pay expenses.”
If minor children or dependents are involved, there may be uncertainty and conflict over who gets custody and who is in charge of trust funds.
Ontario residents can prepare wills themselves using an online tool or a will kit. The documents can even be hand-written. While these methods are low or no-cost, a will can be considered invalid (all or in part) if not prepared correctly. This may lead to family disputes and expensive lawsuits and can delay the distribution of property and possessions.
The safest way to make a will is to hire a lawyer. “The subject of wills and estates is quite complex, and you really should consult a professional,” said Mr. Tatham. “It’s hard to imagine a model (DIY kit) that is thoroughly reliable and that includes all the fine points. A simple thing like two missing words can make a tremendous difference to the outcome.”
Some lawyers have little exposure to estates and wills, so Mr. Tatham suggests using one who is “up-to-date on estate law and does a steady diet of them.”
In preparing a will, he said appointing a capable executor is key. “I’ve had executors inform me they were never asked, and they don’t want the job. At that point we have to go hunting for a volunteer if no substitute is appointed in the will. Now that’s a challenge.”
A qualified lawyer can answer all your questions, make sure the document meets legal
requirements and provide information about tax considerations. As your life circumstances change, the lawyer can help review the will. A lawyer can also help store your will securely against fire, which is important because the original must be presented to settle an estate.
Mr. Tatham said powers of attorney – both for property and personal care – are equally important. These documents appoint someone to act on your behalf if you become incapacitated.
“Banks are uniformly on guard regarding powers of attorney (for property), and may refuse to accept them,” he said. “They like to see documents prepared by a lawyer in the expectation the lawyer has met with the person who signed it, and is satisfied they were of sound mind and not under duress.”
Property includes real estate, money, jewelry and other valuables. Without a power of attorney, a spouse can be denied access to their loved one’s investment accounts, so they can’t give instructions to sell, buy, liquidate or transfer.
Life can be unpredictable, so it’s better to be prepared for end-of-life care. “I think people owe it to themselves to get it right,” said Mr. Tatham. “It’s simply peace of mind.”