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At Clermont Clausi Gardiner & Associates, we offer you professional and thorough representation. We can help.
Planning for your family’s security can be worrisome and challenging. Wills are an important piece of that planning. This is where we can help. Caring and compassionate, our lawyers understand the difficulties people associate with Wills and Estate Planning. Do not worry – we make the process straightforward and simple. Our legal services are thorough, professional and customized. If need be, one of our lawyers will also meet with you in your home with no obligation and at no extra cost to create a Will that suits your individual needs. Contact us now if you require assistance or information with any of the following
- Powers of Attorney
- Estate Administration
Should you have any questions about these and other legal services available feel free to contact our office now.
General Wills and Estate Questions
1. What is a will?
A Will is a testamentary instrument that has to be made in writing.
In other words, it is a legal document that is written to distribute and manage one’s property and an essential part of Estate Planning. The SLRA set outs the requirements for making a valid will.
For instance, it must be in writing, it must be signed by the testator or some one else, in cases of disability, but in the presence of the testator and by his or her direction, it must be witnessed by two people who are present at the same time and sign in the testator’s presence. Also, the testator must be capable of understanding the nature and extent of the assets as well as the intended beneficiaries.
Exceptions: Holograph Wills and Military Wills
2. Why have a will?
A Will allows a person to provide for the welfare of his/her family, to distribute assets as he/she sees fit and to manage one’s property efficiently after death.
Other ways of estate planning include Trust and guardianship arrangements, Insurance Policies and RRSPs, transferring property into joint-tenancies and estate freezing (roll-overs and income splitting).
However, you need a will because it is your last opportunity to exercise your right to choose who gets what from your assets.
3. What happens if you die intestate (die without a will)?
Your assets are distributed by the intestacy laws of Ontario, which are set out in Part II of the SLRA, ss. 44 through 49.
- Spouse but no issue (descendants) = Spouse takes all property absolutely
- Spouse plus issue with net value of property less than Preferential Share (1st 200,000.00) = Spouse takes all property absolutely
- Spouse plus one child with net value of property more than preferential share = Spouse takes the first $200,000.00 absolutely plus half of the residue (what is left over after the preferential share is deducted). Issue gets half of the residue only.
- Spouse plus two or more children = Spouse gets preferential share plus a third of the residue.
- If a child predeceases the testator but lives issue = the spouses share remains the same as if the child was alive at the time of distribution.
- Issues surviving = equally among the survivors, subject to the Spouses rights, according to the nearest in degree.
- Predeceasing Issue= share equally among the predeceased person’s issues.
- No spouse or issue = Parents equally or surviving parent absolutely.
- No spouse, issue or parent = Brothers and Sisters equally with any predeceased brother or sister’s share distributed equally among the surviving children.
- No spouse, issue, parent, sibling = nephews and nieces.
- No spouse, issue, parent, sibling, nephew & nieces = next of kin (by counting upwards to the common ancestor and then downward to the relative with half-blood and whole-blood sharing equally.
- No next of kin = becomes property of the Crown and the Escheats Act applies. (Public Guardian Trustee takes over property)
- P.S. Spouse cannot claim both NFP equalization (s. 5(2) of FLA) and intestacy as well unless the will expressly states that she can.
4. How do you make a will?
Contact a lawyer. Even, if you choose to use a will-kit have a lawyer go over it. If you wish to contact our office, the number is 225-0037. When does a will take effect? S. 22 of SLRA – a will speaks and takes effect as if it had been made immediately before the death of the testator.
5. Are there different types of wills?
- Holograph Will: written entirely by the testator in his/her own handwriting and signed but without witnesses
- Military Will: a writing signed by a member of the Canadian forces placed on active service
- Will by Minors: less than 18 is married or about to marry and actually does marry; is in the Canadian forces or on active service or is a sailor at sea or in the course of a voyage.
- International Will: a will made pursuant to the Convention for the Uniform Law on the Form of an International Will, i.e, it is valid irrespective particularly of the place where it is made, of the location of the assets and of the nationality, domicile or residence of the testator, if it is made in the form of an international will acomplying with the provisions set out in Articles 2 to 5 of the Convention.
6. What is the purpose of estate planning?
- To preserve and protect property for beneficiaries both during the lifetime of the testator and after his/her death
- For the arranged and tax –effective transfer of assets to beneficiaries during the testator’s lifetime and at death.
7. What is a power of attorney?
- A power of an attorney is an authority given by one person (called the grantor or principal) to another person (the attorney) to act on behalf of the grantor in conducting his or her financial affairs or in making personal care decisions for the grantor. In short, it is a means by which an individual maintains some form of control over his or her personal affairs should that person become laid up or incapacitated.
- There are two types a power of attorney for property and a power of attorney for personal care. Some people refer to it as the “Living-will.”
- Presumption of capacity: ss. 2(1) of SDA 18 years or more is presumed to be capable of entering into a contract.
- Ss. 2(2) of SDA: a person who is sixteen years or more is presumed to be capable of giving or refusing consent regarding his/her own personal care.
- Ss. 2(3) of SDA: the presumption of capacity can be relied upon unless one has reasonable grounds to believe that a person is incapable of entering into contact or of giving and refusing consent.
- Ss. 7 of SDA: A POA for property is a continuing power of attorney if, (a) it states that it is so or (b) if it states that the authority given may only be exercised during the grantor’s incapacity to manage property
- SDA requirements for POAs: must be executed in the presence of two subscribing witnesses; the attorney or attorney’s spouse or partner, grantor’s spouse or partner, child, or a person who is a subject of guardianship or persons under 18 years of age shall not be witnesses; persons who provide health care to the grantor for compensation or persons who provide residential, social, training or support to the grantor for compensation, except relatives, cannot be attorneys; and persons under 18 years of age cannot be attorneys.
- Capacity to give a continuing POA:
- Knows what kind of property he or she has and its approximate value;
- Is aware of obligations owed to dependants;
- Knows that the attorney will be able to do anything in respect of the property that the grantor could do if capable, except make a will, but subject to any restrictions or conditions in the POA;
- Knows the attorney must account for his dealings with the property;
- Knows that while capable he or she can revoke the continuing POA;
- Appreciates that unless the attorney manages the property prudently its value may decline; and
- Appreciates the possibility that the attorney could misuse the authority given to him or her.
- In a POA for personal care: A person is capable of giving a POA for personal care if the persons can understand whether the proposed attorney has a genuine concern for the grantor’s welfare; and appreciates that the proposed attorney may need to make decisions for the grantor.
8. Why do you need one?
- A power of attorney for property allows the grantor to choose a trustworthy and responsible individual to manage their personal finances when they can no longer do so.
- It can be used to manage one’s property or finances if a person is traveling out of the country or sell property located in another country.
- A power of attorney for personal care can only be used when the grantor is incapable of making personal decisions regarding their care or treatment.
- To give specific instructions about medical procedures the grantor does not wish to have performed, what forms of treatment are acceptable to the grantor.
9. What happens if you do not have one?
If powers of attorney are not made while the grantor has capacity to make them then one must apply to the courts to get a guardian appointed or request that the Public Guardian and Trustee act as guardian.
10. What are the restrictions on testamentary freedom?
- Part V of the SLRA – Support of Dependants ( application must be brought within six months)
- Family Law Act – ss. 5(2) = if the NFP of the deceased spouse exceeds that of the surviving spouse, the latter is entitled to one-half the difference between them. Section 21 – No spouse shall dispose of or encumber an interest in a matrimonial home unless the other spouse consents, joins in the instrument or releases his/her rights by a separation agreement.
- Perpetuities and Accumulations Act: – no accumulation of income beyond 21 years or a gift will vest outside the 21-year period – Rule against Perpetuity.
- Public Policy – Discriminating or demeaning conditions – barring certain marriages, religion, race etc
- Contractual Agreements.
- Ownership – Joint tenancy and tenancy in common
- Trust Interests
- Beneficiary designations:
- Life Insurance
- .Assets in foreign jurisdictions
- Lack of testamentary capacity
- Change in circumstance:
- Marriage – s. 16 of SLRA
- Divorce – bequests to spouse, spouse as executor are nullified by operation of law – s.17
- Please contact Francis at 225-0037 ext. 12 if you have specific questions pertaining to a particular will or estate matter, immigration matter or a family law matter
Wills and Power of Attorney
This questionnaire is an initial step in the process only and not intended to be exhaustive. We will contact you with further questions:
Click here to download and print the PDF document.
Fill out the form and fax it to (613) 225-0921