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Why Should You Have A Will?

The law firm of Deacon Taws recommends that all clients have a Will, regardless of age. Most of us work for many years accumulating possessions of financial value. It is important that these assets benefit those we care for after we die. This alone is a good reason for having a Will.

The following are additional reasons for having an up-to-date Will:

  1. The Law of Ontario and more specifically, the Succession Law Reform Act, provides a "chart" called the Table of Consanguinity (a table of blood lines) indicating who the beneficiaries will be if you die without a Will. The chances, however, of the designated beneficiaries under this law conforming with those you would have chosen, are remote. Even if your goals do happen to coincide with the law in this regard, it will be much more expensive for the estate to be settled without a will, and thus less will be left to the beneficiaries. In fact, the cost of a Will is likely to be a very small fraction of the cost of settling an estate where no Will has been signed. The only sure way to achieve your goals with respect to the settlement of your affairs, is to have a properly worded Will drawn.

  2. Aside from dealing with possessions of value, a Will affords the opportunity to leave personal items to friends and family.

  3. One of the major reasons we recommend that each person have a Will is both a personal and a practical one; it is a method by which costly, bitter and lengthy family disputes over the settlement of estates are often avoided.

  4. By completing a Will, the burden and responsibility of decision-making by your loved ones is lifted to the extent that these decisions have been made in advance by the person signing the Will (the Testator/Testatrix).

  5. If you die without a Will and your estate needs to be administered, then the Court may appoint someone to be your Estate Trustee. This may not be a person that you would have chosen.

  6. If you die and you are a parent or guardian, the Court, in many instances, will appoint a guardian or guardians for your children who also may not be persons that you would have chosen had you had the opportunity to name someone in your Will.

  7. Finally, the law of estates is constantly changing and therefore keeping your Will up-to-date and reviewing it periodically is almost as important as having one in the first place.

Recently the terms Executor and Administrator have been removed from law in Ontario and replaced with the term "Estate Trustee". There does not appear to be any particular reason for this and the meaning of the new term is essentially the same.

We recommend that a Will be reviewed every three to five years, or upon any major change in a family's circumstances, or of course, upon the death of a beneficiary, Estate Trustee or any other person named in a Will.

To assist the law firm of Deacon Taws in preparing a Will for you, it will be helpful for you to prepare the following information:

  1. Your full name, address, home and work phone numbers;
  2. The names of your proposed Estate Trustees, their addresses, and relationship to you;
  3. The names of any alternate Estate Trustees, their addresses, and relationship to you;
  4. The name of your spouse, if you are married, and any gifts, life interests, or special bequests to him or her;
  5. The full names of your children, dates of birth, and any gifts or special bequests to them; The age at which the children will be eligible to receive any bequests; The name and address of your beneficiaries' proposed Guardian, and alternate Guardian, of any underage children, and their relationship to you;
  6. Any special instructions with respect to the care of any pets;
  7. Any special bequests to any other person, charity, or institution;
  8. Any instructions you may have with respect to your burial or cremation, or with respect to the disposition of your body after death;
  9. Any instructions as to the disposition of business assets;

Once we have this information, we normally meet with you to discuss the best way that your estate can be distributed in order to achieve your individual goals.

The lawyers and staff of the law firm of Deacon Taws would be pleased to discuss your Will requirements further with you at a mutually convenient time.

Do I Need A Power Of Attorney?

A Power of Attorney for Property is a document which authorizes another person during your lifetime to sign cheques, legal documents and most other things on your behalf. In signing a Power of Attorney you do not give up the right to sign for yourself, but are indicating that another party or parties have that right as well. When lawyers refer to "Property", they generally mean not only real estate but also anything else of monetary value.

A Power of Attorney for Personal Care is a document which has legally existed since April of l992, upon the passage of the "Substitute Decisions Act". This document is intended to give another person the authority to make decisions about your health care and decisions of a more personal nature than those that might be contained in your Power of Attorney for Property. This document may also contain a "Living Will", being instructions concerning your treatment or non-treatment in dire circumstances.

Obviously, the authority given by these documents is very great, and the people to whom it is given must be well trusted. A Power of Attorney can be revoked at any time by the person who gives it as long as they are mentally competent. A Power of Attorney expires upon the death of the person who gives it. Some of the main reasons for having a Power of Attorney are:

  1. The right of trusteeship that has been given to an Estate Trustee under a Will has absolutely no legal power until the Testator/trix is clinically deceased, and therefore, if he/she is in a coma or has some debilitative disease such as Alzheimer's, there is no one who has the legal authority to sign on his/her behalf, and his/her affairs cannot be dealt with.

  2. In the event that no authority has been given and the Testator/trix is suffering a disability, then the Public Guardian and Trustee (a branch of a Ministry of the Province of Ontario) may handle the disabled party's business and control will have been lost over their estate. A further disadvantage is that the Public Guardian and Trustee will charge all expenses to the Estate for this service.

  3. While the Public Guardian and Trustee's involvement may be avoided by an Application to Court to have the affairs of a person without mental capacity committed to someone else, this is an expensive, lengthy, inconvenient and not particularly pleasant process.

  4. It may turn out to be extremely convenient from time to time to have a Power of Attorney (particularly Powers of Attorney between two parties, one of whom travels a great deal) if for example documents such as Agreements of Purchase and Sale or Discharges of Mortgages need to be signed and only one party is available to sign.

  5. If a Power of Attorney has been given, in many cases, a potential litigation (law suit) can be avoided between those parties that might have otherwise competed for the authority to deal with your affairs.

  6. The presumption held by many, that spouses can automatically sign for one another, is untrue.

If you wish the law firm of Deacon Taws to prepare your Powers of Attorney, we will require the following information:

  1. Your full name and address;
  2. The full name and address of each person you wish to appoint as your attorney, and whether you wish them appointed to act jointly, or jointly and severally, or in the alternative;
  3. Any conditions or restrictions;
  4. Whether you wish Living Will provisions included in your personal care Power of Attorney;

Often instructions to prepare a Power of Attorney are given at the same time as Will instructions.