In 2018, the Angus Reid Institute conducted a survey and found that half of Canadians (51%) have no last will and testament in place, while only one-third (35%) have one that is up to date. In other words, half of Canadians are set to have no say in what happens to their assets should they die, and nearly one-in-six have wills but have not kept them up to date.^[1] A significant number stated the reason they do not have a will is because they consider themselves “too young” to have to concern themselves with making a will (25%), and almost the same number said they do not have sufficient assets to make a will worthwhile (23%) or they do not know how to get started.

During November ‘Make a Will Month’, the Ontario Bar Association (OBA) hosts multiple legal information sessions at libraries and community hubs across Ontario presented by member volunteers with expertise in wills and estates law. These sessions are intended to assist the public in understanding the importance and benefits of having a will and having it prepared by a lawyer. The sessions are for informational purposes only to raise awareness and do not include legal advice.  Information on available dates and locations for the OBA’s free legal information seminars for Make a Will Month, can be found at:  https://www.oba.org/MAWM/Public-Seminars.

Not having a will or not having a proper will in place can be problematic. An issue estate litigators know all too well, as it can create bitter family disputes, as well as legal battles between siblings, all of which can cost thousands of dollars, if not more. The inevitable scenario can be avoided by drafting a proper will.

Subject to the provisions of the Succession Law Reform Act^[2] (SLRA) concerning dependant support claims and the Family Law Act^[3] (FLA) concerning the surviving spouses right to equalization of the net family property, the benefit of having a will is that it allows an individual to:

• decide who will administer the estate and have the final say in dealing with the testator’s remains;
• decide who will benefit from the estate and keep the assets out of the hands of people the testator does not want to benefit (like an estranged relative);
• put in place proper estate planning structures (like a trust) to ensure a disabled spouse or child receives an appropriate level of care and has sufficient assets to maintain this care after the testator’s death;
• identify who should care for minor children, if any;
• plan and save the estate money on taxes; and
• give gifts and charitable donations, which can help offset the estate tax.

If an individual dies intestate or partially intestate, one’s property is subject to distribution per the provisions of the SLRA. The terms for distribution in intestacy or partial intestacy depend on whether the deceased had a spouse (not including a common-law spouse) or a spouse and children. If the deceased did not have a spouse, children, surviving parents, siblings, nieces or nephews, then the estate will be divided among their next of kin. Only if a deceased has no surviving next of kin will their estate escheat to the Crown.

The terms for an intestacy in the SLRA must be read and considered together with those provisions in the act for dependant’s support and the applicable provisions under the FLA to form a comprehensive legislative scheme.

Many people procrastinate in drafting their wills as they are either unwilling to accept death as part of life or think that they have many years ahead of them before they need to consider the issue.  Sometimes the realization that a will is a necessity comes too late and only after an unfortunate or unforeseen circumstance, such as when an unexpected death or disability occurs. To avoid the added stress on families during an already emotional time, it is wise to meet with an estate planning lawyer to help draw up a basic estate plan, which includes the drafting of a proper will, before these circumstances occur.

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[1] http://angusreid.org/wp-content/uploads/2018/01/2018.01.22-Will-1.pdf

[2] Succession Law Reform Act, R.S.O. 1990, CHAPTER S.26

[3] Family Law Act, RSO 1990