Here comes Legal Form + Video Guide #6:

Living Will (Ontario)

This document can be used by a person to communicate their final wishes concerning the medical treatment they would like to receive when they are no longer able to communicate.  This is NOT a WILL or a POWER OF ATTORNEY FOR PERSONAL CARE (although the terms of one’s Living Will can be incorporated into one’s Power of Attorney for Personal Care).    Here’s the sample Video Guide that comes with this Living Will (Ontario):

Remember: if you need an Ontario lawyer, go to Dynamic Lawyers and make a post.

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As a follow up to our new FREE eBook entitled “Buying and Selling Residential Real Estate in Ontario“, we have just released ANOTHER MUST HAVE and FREE EBOOK: “Wills and Estates in Ontario“.

This 28 page eBook will cover topics such as:

- What is a Will?

- What are the legal requirements to have a valid Will in Ontario?

- How do you prepare to have your Will drafted?

- How do you amend your Will or terminate it?

- What happens if you die without a Will?

- What is an International Will?

- What is a Power of Attorney and why do you need them?

Grab your copy today!

Remember: the information provided in the eBook is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to Wills and Estates matters (e.g. preparing a Will and Power of Attorney package), seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you with your Wills and Estates matters.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to making a Will or what to do where a person dies without a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you.

So what happens if someone who lives in Ontario dies without a Will?

Please keep in mind that a Power of Attorney and a Living Will have no relevance or bearing at this point because the person is dead (they only apply when the person is alive).

Basically, in Ontario, an application is made in the court office for the area (e.g. county, district, region, or metropolitan municipality) in which the deceased resided at the date of death. In Toronto, the appropriate court is the Estates Court office located at 393 University Avenue, 10th floor, 416-326-4230 (otherwise, you make an application to the Ontario Superior Court of Justice).

Applications for Certificates of Appointment of Estate Trustee are processed by Ministry of the Attorney General court staff.   They perform the duties of an estate registrar in the Civil Office of the Superior Court of Justice. These duties are prescribed by law. Staff must review each application to confirm that the application and all accompanying documents are complete and comply with the Rules of Civil Procedure (the rules of court) and other applicable legislation.

Section 74.05 of those Rules require that an Application for a Certificate of Appointment of Estate Trustee (Form 74.14 or 74.15) be accompanied by:

1. An affidavit (Form 74.16) attesting that notice of the application (Form 74.17) has been served on all persons entitled to share in the distribution of the estate (including special ways to serve minors under 18 years old and mentally incapable persons).
2. A renunciation (Form 74.18) from every person who is entitled in priority to be named as estate trustee and who has not joined in the application;
3. A consent to the applicant’s appointment (Form 74.19) by persons who are entitled to share in the distribution of the estate and who together have a majority interest in the value of the assets of the estate at the date of death;
4. The security required by the Estates Act; and
5. Any other additional material which the court may direct.

You should definitely consult with a lawyer about getting these and other necessary documents properly drafted and filed.  These forms can be found here.

If court staff have concerns about the application or accompanying materials, the application must be referred to a judge for direction. The judge may require further materials to be filed or steps taken by the personal representative in relation to the application.

The Ministry strives to process certificates of appointment of estate trustee with or without a will within 15 days after the application and accompanying materials are complete and judicial direction, if required, has been obtained.

If a Certificate of Appointment of Estate Trustee Without a Will is issued, it will be in Form 74.20 (as per the Rules).

If you want to read more about priorities of beneficiaries in cases where a person dies in Ontario without a Will (thereby triggering the rules in the Succession Law Reform Act), check out my previous blog on that topic.

To avoid headache and delay, be sure to consult with a lawyer about applying for a certificate of appointment of estate trustee.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a mistake in a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

A Will is only valid if the Testator knew and approved its content.  If words have been mistakenly inserted into a Will without such knowledge or approval, then a court may strike out those specific passages or phrases.  In Barylak v. Figol, 9 E.T.R. (2d) 305, for example, a residuary clause had been inserted by mistake.  That clause gave the residue of the deceased’s estate to a fund to create a scholarship for needy students of Ukrainian origin. The Testator never gave his solicitor instructions to include that offending residuary clause. There was no evidence that the Will was ever sent to the Testator prior to its execution for review by him. Even if it had been, there was no evidence as to whether the Testator’s command of written English was such that he would have fully understood it. Also, there was no evidence that a true copy of the executed Will was left with the testator or that a copy was sent to him. Overall, the Ontario Court of Justice (General Division) held that the Testator knew nothing about the residuary clause and that it did not reflect his expression. Accordingly, the Court deleted the clause from his Will based on the doctrine of mistake.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice as a dependent, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you in this regard.

What if you have been inadequately provided for in someone’s Will?  Well, if you’re a dependent in Ontario, you might have some legislative recourse.

Section 58(1) of the Succession Law Reform Act allows a deceased’s dependents to apply to the court for support where the deceased (either through a Will or absent one) has not made adequate provision for their proper support.  A dependent is defined under s. 57 of that Act to include your spouse, former spouse, common-law spouse, parent, grandparent, child, grandchild, brother, and sister. A dependant may have to prove that they are a dependent and entitled to financial support under s. 58(1) in court. If the court decides that the person is a dependant and that person can show a need for financial support, then it may order that a certain amount of money be paid to them out of the estate.

If you think that you may be entitled to more from an estate than the amount provided for in a Will, or if you need to determine the rights of others when preparing your Will, consult with a lawyer (by making a post on Dynamic Lawyers).

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will or International Will, you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will or International Will.

Along with other provinces and countries, Ontario is a contracting party to the Convention Providing a Uniform Law on the Form of an International Will.  This means that, if a Will is made in the form of an International Will (i.e. in accordance with the form prescribed by that Convention in the Schedule and Annex in the Succession Law Reform Act) concerning two or more contracting parties, then the Will is valid as between those parties irrespective of where it was made, the location of the assets and of the nationality, domicile, or residence of the testator. At present, some the contracting parties to the Convention include: Belgium, most Canadian provinces (Manitoba, Newfoundland, Alberta, Saskatchewan, Prince Edward Island, New Brunswick, and Nova Scotia), Cyprus, Ecuador, France, Italy, Iran, Portugal, the Russian Federation, the United Kingdom, and the United States of America.  An important difference with an International Will is the requirement that an authorized person (in Ontario, this means a lawyer) attach to the Will a Certificate establishing that the obligations of the Convention have been complied with.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

In this blog, I’ll help answer the common question: is a lawyer required for you to have a Will?

While a lawyer is not legally required for you to have a Will drafted, reviewed, or executed, it is nevertheless in your best interests to do so.  Only a few things are needed in order for a Will to be legally binding and enforceable.  But if you don’t do these basic things properly, the Will may be contested through litigation, which could end up costing thousands of dollars (or more), destroying relationships, wasting years, etc.

In addition to ensuring that the legal requirements of drafting a Will are met and that the specific wishes of the Testator are addressed, a lawyer will typically deal with a number of other issues which could jeopardize the validity of a Will.

First, a lawyer will inquire into the mental state of the Testator.  A lack of capacity to enter into the Will may be grounds to invalidate it.  In Banks v. Goodfellow, 1870 WL 11622 – the English Court of Queen’s Bench famously wrote:

“It is essential to the exercise of (the power of testation) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

If there is a doubt as to the Testator’s mental capacity to enter into the Will (e.g. due to age or physical, mental or emotional illness, etc.), the lawyer may call an approximately qualified medical practitioner to be present at the time instructions are given.  Those instructions may also be video recorded.

Second, a lawyer will also try to make sure that the Testator is not entering the Will as a result of some duress or improper or undue influence from an external force.  The Testator must enter the Will freely and voluntarily or else it may be subsequently contested.  A lawyer will typically exclude interested parties from being present at the time the Testator executes the Will.

Third, a lawyer will be able to discuss with you income tax, probate, and statutory claim considerations.  When you die, you are automatically deemed to have disposed of (immediately before death) all your assets for fair market value under section 70(5)(a) of the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.).  As such, any resulting taxable capital gains have to be included in your income in that year. These capital gains, however, can be deferred through the use of a spousal rollover, which a lawyer can help structure. If you own shares of a qualified small business corporation (which a lawyer can advise you on), you may also be entitled to a lifetime capital gains deduction (which is presently $375,000). With respect to minimizing probate fees, there are a number of legal possibilities which can be canvassed with your lawyer – such as transferring assets into joint ownership, designating beneficiaries of RRSP’s, RRIF’s and insurance policies, establishing an inter vivos trust, and executing multiple wills.  Finally, your estate may be liable to pay your dependents (pursuant to section 58 of the Succession Law Reform Act) and spouse (pursuant to sections 5 and 6 of the Family Law Act, R.S.O. 1990, c. F.3) more than what they would otherwise be entitled to under your Will.  A lawyer can help you address these results.  In the case of your spouse, for example, a lawyer can draft a marriage contract that would preclude your spouse’s ability to entitlements under the Family Law Act.

Finally worth mentioning is that (as will be discussed below), a lawyer is required to act in connection with International Wills.

For all of these reasons, it is generally advisable to contact a lawyer when you need to write or update your will.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

In this blog, I’ll be writing about what information you will need to gather when preparing to have your Will drafted.

In preparing your Will, you should gather some important and relevant personal and financial information.  This information, which can be provided in the form of a checklist, will help the drafter tailor your Will to meet your needs.  Having this information conveniently available alongside the Will can also benefit your trustee and beneficiaries, who won’t have to be looking for hidden or hard to find assets and liabilities after you die.  The following basic information should be included in the checklist:

• Personal Information: name, address, date of birth, marital status (past and present), residency, previous Will, marriage contract, etc.;
• Family and Dependent Information: names, addresses, dates of birth of spouse(s), children, and dependents, etc.;
• Professional Advisors: names and addresses of lawyer, accountant, investment advisor, life insurance agent, etc.;
• Income Information: amount of annual income from all sources (e.g. employment, business, rent, royalties, etc.);
• Assets: bank accounts, safety deposit boxes, real estate, life insurance, annuities, RRSPs, RIFs, pensions, investments, business interests, debts owing from third parties, automobiles/boats/recreational vehicles, machinery/tools/equipment, household goods and furniture, etc.; and
• Liabilities: mortgages, loans, credit card balances, etc.

Once these details have been gathered, the next step is for you to outline the instructions for your Will. To start, the following questions will need to be answered with respect to disposing of personal effects and the residue of your estate:

• How do you want your personal effects and estate residue to be disposed of with respect to your surviving spouse and children (if applicable)?
• How is the distribution to be effected (i.e. who does it and when can they do it; for example, the estate trustee can, in their sole and absolute discretion, effect the disposition of personal effects)?
• How is your real estate to be handled?
• How is your share of family business to be disposed of?
• Would you like to create a spousal trust, whereby your surviving spouse can live off of the income generated by the residue of your estate until he or she passes away, in which case, the residue is distributed among the beneficiaries (e.g. the children?)?
• What kinds of powers do you want your estate trustee to have with respect to you personal effects (e.g. power to sell, power to invest, power to distribute proceeds, power to loan funds to beneficiaries or others, power to take reasonable compensation from the residue of the estate, etc.) and assets?
• Do you want to have special clauses dealing with minors (e.g. property relating to minors, a trust relating to minors, guardians of minor’s property, etc.)?
• What kind of funeral do you want to have?
• Do you wish to donate your organs?
• How are disputes to be handled (e.g. arbitration, mediation, court, etc.)?

These and other questions will need to be answered before your Will can be properly drafted.

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Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only.   If you need legal advice with respect to a Will,  you should seek professional assistance (e.g. make a post on Dynamic Lawyers).  We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

In this blog, I’ll be discussing what a Will is.

When you die, you may be leaving behind valuable assets, such as real estate, bank accounts, and personal possessions.  Taken together, these assets are referred to as your “estate”. A Will is a legal document which declares your final wishes concerning the disposal of your assets after you die. According to section 1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, a Will also includes a “Codicil”, which is a document that cancels certain parts of your Will or adds new parts to it and which must be read together with your Will as one document.  A person who makes and signs a valid Will is referred to as a Testator (for a man) or Testatrix (for a woman).

A Will identifies who will responsible for administering your final wishes.  While this individual is commonly referred to as an “Estate Trustee”, “Administrator”, “Executor”, “Personal Representative” or “Liquidator”.  He or she will pay out liabilities, manage remaining assets, and distribute the remaining funds of the estate (the “residue”) to the beneficiaries designated under the Will. A Will may also identify Guardians in the case of minor or incapable dependents left behind.

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Please note that the following information is being provided for educational and informational purposes and does not constitute legal advice.  If you require a lawyer, you should make a post on Dynamic Lawyers (100% free and anonymous). We have trusts and estates lawyers registered who can help you with preparing your will, power of attorneys (for property and personal care), and living wills.  If you’d like to learn more about Powers of Attorney in Ontario, check out our FREE Legal Guides.

This is the second posting about Power of Attorneys for Personal Care in Ontario.

What are the legal requirements to have a valid Power of Attorney for Personal Care?
To have a valid Power of Attorney for Personal Care under the Ontario Substitutes Decision Act:

1. It must be written and signed by the grantor and two witnesses (who must both be present when the grantor executes the Power of Attorney for Personal Care).
2. The document must authorize a person to be an attorney to make decisions, on the grantor’s behalf, concerning the grantor’s personal care: s. 46(1).
3. A person cannot act as an attorney if that person provides health care to the grantor for compensation or provides residential, social, training or support services to the grantor for compensation.  The exception to this rule is if that person is the grantor’s spouse, partner or relative: s. 46(3).
4. The grantor (i.e. the person giving the power of attorney) must have capacity to give the continuing power of attorney (i.e. through knowledge, awareness, appreciation, etc.): s. 47.
5. A person with capacity is capable of revoking a continuing power of attorney.
6. The document must be signed by two witnesses who are (among other things) not the grantor or attorney’s spouse or partner, a person less than 18 years old, or a child of the grantor (or someone who the grantor has demonstrated a settled intention to treat as his or her child): ss. 48 and 10(2).

The Power of Attorney need not be in a set form or template: s. 46(8) of the Ontario Substitute Decisions Act.

A word or two on the requirement that the grantor must have sufficient capacity to grant the power of attorney.  The grantor must be over the age of 16 and must be mentally capable as demonstrated by things like:

• knowing whether the proposed attorney has a genuine concern for their welfare; and
• appreciates that the person may need to have the proposed attorney make decisions for them (s. 47).

When does a Power of Attorney for Personal Care take effect?
A Power of Attorney for Personal Care takes effect when a person is incapable of understanding information that is relevant to make a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene, or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decisions: s. 45.

In other words, if a person cannot make some or all of their personal care decisions due to mental incapacitation, then the Power of Attorney for Personal Care is triggered.

Generally, it’s the attorney appointed under the Power of Attorney who determines when this has happened, but you can designate in your Power of Attorney for Personal Care otherwise (e.g. you want a formal assessment from a medical practitioner to confirm your incapacity; you can specify who or just make a general request, etc.).

How does one terminate a Power of Attorney for Personal Care?
A Power of Attorney for Personal Care is terminated:

• When the attorney dies, resigns, or becomes incapable of personal care unless another attorney (joint or substitute) is provided for the in Power of Attorney for Personal Care;
• When the court appoints a guardian for the grantor;
• When the grantor executes a new Power of Attorney for Personal Care (unless multiple Power of Attorneys are personally provided for);
• When the Power of Attorney for Personal Care is revoked, which must be in the same way as it was executed – namely, in writing, signed and dated before 2 appropriate witnesses (and it should also refer to the Power of Attorney that is being Revoked or parts therein): s. 53

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