Will Planning, Drafting and Execution

What is a will?

A will is a written document prepared according to your instructions that gives direction as to what will happen with your property upon your death. There are several requirements that need to be satisfied for a will to be recognized as valid. Some of these include:

1. you must be of legal age (in Ontario which means that you are 18 years of age);
2. have testamentary capacity (generally this means that you understand your responsibilities and have knowledge of your assets); and
3. you are not subject to any undue pressure from someone when deciding who will receive your assets upon death.

A will to be valid, generally, must be signed in the presence of two witnesses who have no interest in receiving a benefit in the will.

A will should name a person or persons to administer and have the responsibility to carry the instructions in the will. This person is called the Estate Trustee (formerly Executor).

All wills should include instructions concerning some or all of the following:

1. to pay debts, funeral expenses, and income taxes;
2. gifting of personal possessions and household furnishings;
3. gifts to those whom you wish to benefit including family members, friends or charities;
4. trust provisions if there are children or young adults as beneficiaries; and
5. names of persons to act as guardians of children.

Although it is legally possible to prepare your own will, it is not advisable to do so. There are many potential complications and an unintended result may occur if you try to draft your own will without experienced legal assistance. Let one of our experienced lawyers help you with ensuring your final wishes are captured in your will.

Why do you need a will?

We live in a society that is subject to complex rules affecting our assets and property. The decision to prepare a will is a means available to us to simplify the consequences of our death. Our will permits a more orderly distribution of our accumulated wealth in a manner consistent with our thinking. A will prepared with the assistance of a lawyer will allow you to consider how best to accomplish the beneficiary scheme that you have decided upon and to consider various possible scenarios of what may happen with benefits left to named persons. It allows you to benefit family members and other organizations or charities which may not be possible if you died without a will. If you have minor children, it provides you with the ability to choose your children's guardian and consider when your children will receive their inheritance and how your children can be assisted from your assets during their upbringing if you died while your children are still young. The preparation of a will with a lawyer will allow you to consider income tax consequences upon death and how best to address such income tax issues. Without a will, you lose your ability to choose what will happen with the wealth that you have accumulated and allows provincial legislation to determine what happens to your wealth. This process often takes longer, is costlier but most importantly means that your wishes may not be followed as such wishes are unknown.

Appointing Estate Trustees

An Estate Trustee (formally Executor) has the responsibility to administer your estate from the time of death until all provisions contained within the will have been satisfied. It is important that you have the utmost confidence in those persons that you name as your Estate Trustee as they are responsible to protect your assets, implement the directions contained within the will, including the payment of all income taxes and other debts, and making certain that the named beneficiaries receive the benefit to which they are entitled.

Spouses of children are often named as Estate Trustees but in a more complicated society, especially with blended families, it may not be the appropriate selection. As much as possible, you should avoid naming Estate Trustees who are significantly older than yourself, particularly if part of your estate is going to be held in trust for minor children. It is also wise to name an alternate person, in case your first choice is unable to continue the task or predeceases you. If you have not done so and your Estate Trustee dies while looking after your estate, whomever they have named as the trustee of their estate could also become responsible for your estate as well.

When there are no appropriate family members or friends, a professional such as your lawyer or accountant may be willing to be your Estate Trustee. In the case of large estates (usually upwards of one million dollars), it may be appropriate to name a trust company as your Estate Trustee. However, these options should be regarded as last resorts as such advisors, you can expect, will charge your estate their normal professional fees for their work as your Estate Trustee, whereas family members and close friends will often charge very little or nothing at all, which leaves more of your estate available to distribute to your beneficiaries.

Guardians for Dependants

In the event that something should happen to them, parents of minor children are naturally concerned that appropriate and responsible people will look after their children. This is normally done by naming a person, or a couple, as the guardian(s) of the person and property of such children. These are usually family members or close friends.

Parents of minor children are equally entitled to custody of the child. Unless a parent has lost custody of a minor child, in the event of one parent's death, the right to custody of the child "passes on" to the other parent. Should a parent have lost their right to custody, the appointment of a guardian is only effective by the person solely entitled to custody of that child on the day immediately prior to the day the appointment is to take effect.

It should be noted however, that the appointment is only temporary until the court declares a more permanent order for custody. Consequently, should the named guardian wish to have permanent custody of the child(ren), they need to bring a formal court application for custody, with the will as evidence in support of that application. Despite the designation of a guardian in the will, anyone may apply for and attain custody should the court determine that it is in the best interest of the child. However, the will of the custodial parent will be highly persuasive and judges are usually reluctant to substitute their own opinion for that of the deceased parents concerning what would be best for their children. An exception to this is in the instance where there is very strong evidence that following the deceased parents' wishes would be harmful to the children.

Guardianship not only involves physical care and custody of a child but can also involve naming someone to look after the property of the child until the child reaches the age of majority. It is important to keep this in mind and to name someone whose judgment you trust and respect since your children's future may be greatly affected by your decision.

Storing your Will

Careful thought must be taken in determining how to store the original copy of your will. Should you keep it in your possession and it cannot be located upon your death, the law will presume that you destroyed your will. If there is not enough evidence to rebut this presumption, the court will find that you had died without a will. Consequently, it may be advisable to ensure that your lawyer either keeps the original copy or prepares one or more copies for his or her file.