Every lawyer who does Wills has had the experience of being called by the client who is about to board a plane and thinks it could crash. Don't laugh; it's true!
This week, a few of the at least 51% of Canadians who don't have a Will, for some strange reason, felt compelled to reach out to lawyers. "Can I do that online?" they asked, as they looked up from Instagram and Facebook. It's clear that knowing exact numbers of new cases per day in Italy is a higher priority than ensuring that the fruits of one's lifetime of labour go to the right people with minimal family grief and money lost in taxes and litigation.
There are some things you can't do when the time comes.
When you are getting on a plane, you can give your lawyer instructions for a Will. You can contemplate the things that matter and you can get the process in motion. Making a Will is not a long process. However, to do it properly, you need to go over your intentions and assets with your lawyer. Almost without exception, a couple of issues arise from this conversation, if properly done, which require further thought or investigation. For example:
You may need to check beneficiary designations in your insurance and RRSPs or do some sort of follow-up of that nature.
You may not have realized the difference between disposing of special personal items within your Will or by way of a non-binding memorandum outside the actual Will.
You probably didn't recall, or maybe you never knew, that you should be doing two separate powers of attorney as well, one designating someone to look after you in the case of incapacity to do so, and the other designating someone to manage your financial and material assets--now you have to think about such things as who would be most suited to those roles, and who you could count on if your first choice were unable to act.
What do you mean, it's not advisable to have an executor who lives out-of-province?
What do you mean my husband and I don't make one Will together?
Some of your assets might not need probate to be transferred, so that you could save your estate a lot of taxes if you made two Wills instead of one. Yes, that's a thing now, and it's often really worthwhile.
What are the options for providing for the children of a second marriage vis a vis those of the first marriage?
So let's do this properly and get it right, because once you have done it, you most likely won't revisit it again any time soon. Life is busy.
In recent months, a number of my peers have had someone close to them suffer a stroke--one of the many things that can fall upon us suddenly when we least expect it. While their loved one recovers (or, in some cases, does not) finances still have to be managed by someone or what will happen? Someone must make the personal care decisions. If a Will and powers of attorney were still something they were going to get around to, well, it is definitely too late.
Back to Covid-19. So can you do your Will online, what with viruses and all?
What you can (and should) do:
Take advantage of the imposed breather from everyday life to contemplate your legacy. How can you best provide for your family and preserve what you have for their future? How will you set up your family for a hopeful future if you are not there to provide for them forever? Do you need to put anything else in place to make everything work out? What happens to the cottage? How will you even out your gifts among different children? How old will your children be when they will be able to handle a substantial amount of money? And who will be the right person to manage and pay out amounts to fund their education until they are mature enough to do it themselves? What if you have an RESP for them--how does that get administered?
Consult a lawyer and find out what the issues are in your case. Discuss options. Get the legal advice to make final decisions. Normally, nothing is a substitute for an in-person meeting, something highly recommended for a variety of reasons including the lawyer's ability to verify your understanding of issues, that you are acting freely and not under someone else's influence and that you have legal capacity and an understanding of your assets--all of which go to the actual validity of your Will. This is more important than you may appreciate. However, in March, April, and further into 2020, you can communicate by phone, electronically or by skype with your lawyer and at least get the ball rolling. Do the homework and the legwork. Have the lawyer prepare drafts that you can review, and sort out all of the details.
Get all of the documents into final form, expressing your exact wishes and goals.
The last step: Execution of a Will
This is the tricky part, my friends. This is the part that cannot be done online. Here are the issues:
The execution (signing) of Wills is governed by statute and subject to very strict rules. A Will has to be witnessed by two people in the physical presence of the testator (the person making his or her Will). They must sign as witnesses in the presence of each other, and in the presence of the testator. The Witnesses cannot beneficiaries under the Will, nor married to a beneficiary or under the age of eighteen. There's more detail to it than that, but that is enough information for you to notice that a small gathering must take place in order to get your Will signed, something that is incompatible with self-isolation, to say the least.
Once the Will is signed, an Affidavit of Execution of the Will is sworn by one of the witnesses as proof of the proper execution of the Will, and there is a similar process for each power of attorney. This is done in front of a legally-authorized Commissioner of Oaths (usually the lawyer who prepared the Wills for you). Again, in Ontario there are no exceptions. You simply can't swear an Affidavit without being in the presence of the Commissioner of Oaths.
If the lawyer hasn't yet met with you in person and has accommodated this health crisis by taking instructions and having discussions in cyberspace so far, then this is the only opportunity to meet her professional requirement to be able to verify the client's understanding of everything that has been done. Best practice is to review the final Wills with the clients in person immediately before they are signed. This should be done in every case without exception, and goes to the validity of your Will and the lawyer's ability to stand behind it if there is any issue after your death.
Count up the people in the room. When I have a couple sign their Wills, there is generally a gathering of five people--the couple, the two witnesses and myself. In many offices, add support staff to that.
Sometimes clients insist that lawyers send them out the documents for signing, with detailed signing instructions. This is a legitimate option, but a bad one that should be avoided if at all possible. In the Covid-19 world, you could do it on the grounds that a Will with signing errors is better than no Will at all. But is it? It may not actually hold up in court, and who wants to go to court wasting tens of thousands of dollars anyway? My experience is that it is very rare to get through a signing without catching numerous pages missed and oversights, all of which are managed in the presence of a careful lawyer. The most sophisticated of clients nonetheless still make the same mistakes due to the amount of detail and particularity needed. In a Covid-19 world, you might have to do without the Affidavit of Execution until some later time when you could send one of your witnesses to a person who could commission his or her signature without passing germs around. In any event, you'd still have to have a minimum gathering of three to get a single Will signed properly and the risk of error would be high.
Lawyers who send out Wills with instructions for unsupervised signing often try to get the clients to come back in later when possible, to re-execute the Wills, since a failure of proper execution is likely to invalidate the Will.
Do people cut corners on these procedures? Yes, all the time. Do they know whether their sloppily thrown-together rushed Wills which they think are "good enough" are going to fail their family? No, sadly, lots of people will avoid the further stress of questioning whether they have served themselves properly and done a thorough job. Here is an instance where the annoying phrase, "you don't know what you don't know" sums the situation up nicely.
The goal of a Will is not to trick yourself into a false peace of mind; it's to effectively pass on your material legacy after you're gone.
So don't wait until you're packing your suitcases. Don't wait until there's life-threatening global pandemic. Don't wait until something happens to you, because you have to get your Will done before you need it!
Stay safe. ✈
#wills #willsandestates #powerofattorney #estateplanning #makingawill #signingawill #witnessingawill #executionofwill #execution #lawyer #ontariowill #ontario #yorkregion #covid19 #pandemic #couplewills #livingwill #percentageofcanadianswithoutawill #onlinewill #preparingforatrip #trip #organizing #personalplanning #family #lookingafterfamily #takingcareofbusiness #expecttheunexpected #lifeplanning #responsibility #actinglikeagrownup #guardian #makeawill #custodyofchildren #probate #lastwillandtestament #kingcity #estatesandtrusts #executor #estatetrustee #estateadministrationtax #healthcare #providingforchildren #secondmarriage #willforsecondmarriage