Where there's a will, there's a way forward

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Image: Giuseppe Argenziano/Unsplash

COVID-19 has brought a lot of things into sharp focus for most of us -- what we value; divisions in our society between those who can and cannot work from home; how we enjoy spending time; the quality of our domestic relationships; the challenge of "stay at home" for the homeless; how access to technology divides us; who we enjoy spending time with; etc.

Mortality, though, is one that keeps coming up for many.

Death and dying is a topic that most of us steer clear of. I know this all too well as a widow now for two years. The best way I know of to kill a casual conversation is to speak of my husband, his terminal illness, his MAiD death, and so on. 

Many people squirm and change the topic. And as uncomfortable as some are with the idea of death in the abstract, they are even more uncomfortable with contemplating their own death. In the words of Washington Post columnist, Emma Pattee, "we are wired to accept that death happens -- just not to us."

COVID-19 though has made many people think about death in a less abstract way. Yes, people are dying, and yes, they are dying of COVID-19, and yes, responsible people need to think about what their death would mean for those they leave behind.

Wills and estates law is governed by provincial legislation, and I am an Ontario‑based lawyer. Regardless of the province you live in, I say confidently that the hassle to your loved ones of you dying without a will outweighs the hassle to you of making a will. Administering an estate where there is a will is a tedious and thankless job. Without? Even worse.

Will‑making is an interesting process to watch. We have clients who have been diagnosed with an illness that could be terminal or those who are planning a big trip (not lately of course!) and they want their wills in a few days. 

Others come to us knowing that they should attend to this, but without a strong urge to complete the task. One will we recently completed took five years (!) to complete. This is a very expensive way to write a will and not recommended. In our experience, it's best to get it done and then don't think about it again. 

Some of you are thinking "I don't have any assets -- I don't need a will." Not so. 

While wills are certainly important to dividing up the fortunes of the rich, they are just as important for regular people who don’t own property or have big bank accounts.

Think of this: we regularly receive calls from housing providers -- a tenant or co‑op member has died, there is no‑one else living in the unit. The housing provider asks "who should have access to the unit?" Seems like such an easy question but, whoa, can it get complicated. 

First question ‑- who's named in the will as the executor (or estate trustee)? All too frequently, the answer is "there is no will." 

The housing provider is then left with a difficult task of analyzing risk -- if we let this person who claims to have a close connection with the deceased into the unit, do we risk a claim from another relative or friend who will argue that they are the ones most suited to dealing with the affairs and things of the deceased?

Is there a long‑lost family treasure in that unit -- great grandmother's ring, a treasured artefact from the homeland -- that's been the subject of arguments for years? Is there a 52-inch flatscreen TV that two siblings have had their eye on? Waiting for a count‑appointed estate trustee (the Ontario process) can take months and obviously the housing provider needs access to the unit before then. 

It's not just housing providers who will struggle if there is no will. Family members who need to pay bills on the estate's behalf will find bank accounts frozen and no‑one authorized to get access.

What are the key aspects to a will? 

First, a will is where you name the person who will be responsible for administering your estate -- the executor or estate trustee. That might include paying your last bills and filing your last tax return. It also might include distributing your things to people according to your wishes. 

Second, a will names who gets your things and who gets your money. If you want the Humane Society to receive funds, that can go in your will. If you want your 2015 Toyota Corolla to go to your nephew, put it in the will. 

Third, a will also clarifies who doesn't get anything -- if they are not named, they don't get anything (there may be some legislative exceptions to this -- but at least your intention will be clear if there is a will). In some cases, that might help resolve disputes. 

Fourth, a will might state who should be guardian to your children, if they are under age 18. And so on.

You already have a will, you say? Well, is it up to date? 

If you named your mother as executor but she died three years ago, then you need a new will. If you made your will 10 years ago when you were childless, but you now have two children, then you need a new will. If you stopped speaking to your sister five years ago, but she's named as guardian for your kids, then you need a new will. If you made your will when you were single but you married two years ago, then you definitely need a new will (bet you didn't know that in Ontario, if you marry, your old will is void unless it specifically addresses the fact that you were planning to marry the person you married). If you named your neighbour as your executor when you lived in Halifax but you now live in Toronto, you need a new will.

Will‑making is also a great time to name the people who will look after your property and your health care if you can no longer do these things. In Ontario, these are called power of attorney for property and power of attorney for personal care. These documents are only valid when you are alive but are valuable to preventing disputes if you were to no longer be able to manage things yourself.

The Ontario Bar Association has traditionally promoted November as "make a will month." You've got a few days left this month to get the ball rolling. 

Celia Chandler joined Iler Campbell LLP, a law firm specializing in co-op, non-profit, and charitable law, in 2005, and was called to the bar in 2006. Iler Campbell LLP is a law firm serving co-ops, not-for-profits, charities and socially-minded small business and individuals in Ontario.

Pro Bono provides legal information designed to educate and entertain readers. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. While efforts are made to ensure the legal information provided through these columns is useful, we strongly recommend you consult a lawyer for assistance with your particular situation to obtain accurate advice.

Submit requests for future Pro Bono topics to [email protected]. Read past Pro Bono columns here.

Image: Giuseppe Argenziano/Unsplash

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