Not enough Canadians have a will in place. According to the most recent Canadian Financial Capability Survey (2019), only 55% of Canadians have a will. For people under 35, that number drops to only 22%, whereas more than half of Canadians 65 and over have updated their wills in the past five years

Last month saw the annual ‘Make a Will Month’, a public awareness campaign championed across Ontario by the Ontario Bar Association (OBA). The 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 OBA also help members of the public access the requisite legal expertise. The OBA publishes a “Find-a-Lawyer Database” on its website, where members of the public can search and discover wills and estates lawyers in their communities.

The Canadian government also offer guidance on their website. Information can be found at: https://www.canada.ca/en/financial-consumer-agency/services/estate-planning/will-estate-planning.html

During this years Make a Will Month, Kim Whaley, alongside Ian Hull and Jordan Atin from Hull and Hull LLP, presented a webinar on Wills and Estates planning with Canadian Lawyer Magazine. The webinar polled its participants, asking them “what is the main reason many Canadians don’t have a will in place?”. Of the 190 responded, nearly two thirds (62%) believed that people did not know where to start or it was too complicated. Cost was the answer for 27% and time constraints for 11%. The presentation can be found here.

A lack of understanding and familiarity surrounding wills is an important reason why so many Canadians do not have wills. Other reasons include the cost involved and the lack of considerable assets, usually at younger ages. Many people also procrastinate in drafting their wills as 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.

From a litigation perspective, not having a will or not having a proper will in place can be problematic. A lack of a will can create bitter family disputes, as well as legal battles between siblings, all of which can cost thousands of dollars, if not more. Scenarios like this can be avoided by drafting a proper will.

Subject to the provisions of the Succession Law Reform Act^[1] (SLRA) concerning dependant support claims and the Family Law Act^[2] (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.

If your clients don’t yet have an estate plan in place, it is important for them to learn about the value of making an estate plan. It’s also the time for your clients to review any estate plans which they may have already made. It is important to inform your clients that an estate plan should be reviewed on a regular basis to ensure that it matches their intentions and personal and familial circumstances.

It is also important to remind clients of the value of making an estate plan with a wills and estates lawyer. The investment in a professionally prepared estate plan is arguably the most valuable investment that a person can make, since it is designed to protect all other investments through the ultimate transfer of wealth upon death.

Thanks to the OBA, there are plenty of free legal resources than members of the public can access and can help them in the process of making a will.

MAKE A WILL MONTH HIGHLIGHTS NEED FOR PROPERLY DRAFTED WILLS

OBA MEMBERS LEADING FREE PUBLIC INFORMATION SESSIONS

November is Make a Will Month, and the Ontario Bar Association (OBA) is once again spearheading a campaign to educate the public about the need for a will and how lawyers can help people draft one properly. Throughout the month, volunteers from the OBA will be leading free information sessions for the public in communities across Ontario.

“Make A Will Month is a perfect example of the great work being done by our members right across the province,” says OBA President Karen Perron. “It’s a service that not only shows the involvement so many of our volunteer lawyers have in their communities, but also showcases the expertise of the OBA and its members, and how valuable this knowledge is for the public.”

Drafting mistakes in wills can lead to ambiguities, problems and costly litigation, even in families where everyone gets along. Digital assets, retirement savings, marital status, and online accounts are just a few things that must be considered. Documents should also be reviewed on a regular basis to ensure wills are up to date.

“Wills have changed over the years, but the importance of having one hasn’t,” says Darren Lund, chair of the OBA’s Trusts and Estates Law Section. “These days, there are more and more factors that people must think about when making a will or updating it. Since wills help provide for loved ones, they need to be drafted in a way that truly reflects a person’s wishes. Lawyers can give people the peace of mind that comes with knowing it has been done right.”

QUICK FACTS

• According to the most recent Canadian Financial Capability Survey (2019), only 55% of Canadians have a will. For people under 35, that number drops to only 22%
• More than half of Canadians 65 and over have updated their wills in the past five years

Options: 190 responded

• Where to start = 93 (49%)
• Cost = 51 (27%)
• Too complicated = 25 (13%)
• Time constraints = 21 (11%)

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[1] Succession Law Reform Act, R.S.O. 1990

[2] Family Law Act, R.S.O. 1990