The difference faced by a person selling life insurance and someone intending to make a will is similar to a great extent. The former has to tell the client to visualize a situation when he/she is not alive, not quite a great opening line. The latter similarly is not expected to think of impending death, at least not in the immediate future. However, the probability of death is always there; quite a number of people die at a young age. So, financial planning for retirement, children’s education and so on should also include drawing up a will, which could be altered, also at will, at no great expense.
Anyway, if the unthinkable happens, and one leaves the world suddenly without making a will; that is dies intestate, then what next? For one thing, the government may intervene to settle matters. For another, intestate and probate regulations are quite complex and complicated nearly everywhere, and Canada is no exception. Consequently, people depending on the departed would be left high and dry, and even without money required for a reasonably decent lifestyle. That is not all; there could be bickering and recrimination, fights and quarrels, claims and counter-claims and, in their wake, prolonged unseemly litigations when family and friends would turn into foes. Hence, someone making a will is called the testator; as she or he will die with a will and not intestate (without a will).
Having regard to all these factors (there are more), it is better to get professional help from people knowledgeable in such matters. No doubt the lawyers at Levy Zavet PC can be of great help, and a one stop solution! The adviser/lawyer would need to know about things in great detail, and some of the queries might appear uncomfortable. However, the lawyer is not only responsible to you professionally, but also to your near and dear ones of whom you intend to benefit. Any mistake in drawing up the will would naturally be unacceptable. To begin with, the lawyer would check whether you have the capacity to make a will. In other words, s/he has to find out if you are sane enough to make a will and a testament, and that you know about your possessions, and that you realize that those assets would be given to the beneficiaries of your will. This is a requirement for the will to be valid. Also, it is not uncommon for people to be incoherent at times. If, however, such lapses occur too frequently, the lawyer may have to make discrete enquiries from your doctor or, in some instances, a psychologist. Then, your lawyer has to ensure that you are not making the will under the influence of someone or under some kind of threat. It is for this reason the lawyer would probably insist on taking instructions with regard to the will from you alone, without anybody present.
The point mentioned above brings under consideration the language in which the will is written along with your (the testator’s) first language. If different, then it is likely that the lawyer would call for an interpreter, who should never be a family member of the testator. Following this, comes the issue of illiteracy. It may sound strange, but even now there are people who are illiterate or have limited literacy skills. Generally, such people try to hide their defects, and, may not understand all that is written in the will. This is all the more reason the testator would find the lawyer exasperatingly asking for documentary evidence of all details, especially in regard to assets. Even when literacy is not an issue, the testator may counter such detailed queries stating that everything s/he possesses is after all, bequeathed (willed) to the spouse. The point is that the lawyer is not being unnecessarily inquisitive, but rather getting the details to find out the amount of income tax and estate administration tax (probate) likely to be imposed on the testator’s estate.
With regard to questions of a personal nature, the lawyer must not hesitate to bring up every question that may turn into a legal matter under right. For instance, there is the definition of a “dependant” in part V of the Succession Law Reform Act, and its potential for a future claim on the estate is important. Special mention has to be made in the will if a child of the testator is disabled in any manner. The testator needs to be informed about the provisions of Ontario’s Family Law Act if any of the testator’s children are married. If such questions are not asked, the lawyer would be at risk of exposure to liability at the instance of a dissatisfied beneficiary. Likewise, the testator may not recall the separation agreement with an ex-spouse, and, in such an instance, it would not be rude of the lawyer to ask for a copy of the agreement.
There are two Ontario statutes/laws that constrain somewhat the testator’s freedom to make a will. For example, Part V of the Succession Law Reform Act (Support of Dependants) (“SLRA”) and Part I of Family Law Act (Family Property: property rights of legal spouses) (“FLA”). It is necessary for the testator to be aware of these provisions along with the ones specified in s. 72 of the SLRA. Likewise, the FLA introduced in Ontario in 1986 has made will planning much more complex.
In regards to estate administration tax, it is possible in Ontario to reduce the total amount by making a number of wills. In this context, it is very important for the testator to know about the special income tax rules which are applicable, on and after the death of an individual. All this, and much else has to be taken into account before a will has been formally signed. Lastly, it is important to keep a copy of the will (Xerox) separately from the original in a safe location for eventualities. For help in drafting your will and administering your estate, contact the lawyers at Levy Zavet PC. Its not just writing a good will o r wills that you will use us for, but also on how to plan the administration of your estate in order to maximize your beneficiaries’ interests and minimize the probate tax and final income tax.