Powers of Attorney, Wills, & Estates

What is a WILL?  The general information in the overview below will be give you an excellent idea of a what is a will, also referred to as the "last will and testament" of a person.

Below  this  'explanation'  of  a  will,  there  is  information   on the effectiveness of a handwritten will made in Ontario - wills likely made without the assistance of a lawyer.

• When Asa Biah died, his assets and debts did not suddenly go up in smoke or vanish. They became part of his estate.
• His estate may be sued, and his estate may sue another. His estate is administered by an executor, executrix, or administrator.
• If you had an outstanding legal debt owing to Asa when he was alive, that same debt remains outstanding to his estate, and if you default, the estate can sue and hold you liable.
• When Asa was alive, he signed enduring powers of attorney for property and health and named his wife, to whom he had been married for 20 years, as his attorney.
• His death was preceded by a period of incompetency and his wife made decisions pertaining to property and medical care as required.
• But on Asa’s death, those powers of attorney became of no force and effect and so his wife looked about for his will or testament.
• Asia, as the maker of the will is called the testator. 
• Asa’s will would be a legal document that expressed his wishes as to how his property is to be distributed after his death. It would be signed by Asa.
• The opening words of the will might go something like this: “This is the Last Will and Testament of me, Asa Biah, of the City of Pineville, in the Province of Ontario, made on the date shown beside my signature. I hereby revoke all former Wills and Codicils {modifications] made by me.” 
• If no will is found, this is called an intestacy.
• If it is an intestacy, Asa’s wife will rely on provincial survivorship legislation as to the debt-free assets (there may be) she and the children are entitled to.
• In Ontario, if Asa had no will, his wife may elect to take under survivorship or family law legislation.
• If Asa left a will, Asa’s wife may elect to take what she was left as a beneficiary under the will, but if the inheritance is somewhat paltry, she can elect to seek more under the provisions of family law legislation.
• These three areas of law – estates, powers of attorney, and wills – have been simplified here to provide a quick general understanding. 
• For personal matters, it is advisable early-on to seek the advice of a practicing lawyer.
• Inability to pay for legal assistance and litigation is often a practical consideration but, in some jurisdictions, legal aid and other help is available. 
• Also, discuss this with a lawyer: if the unreasonable spouse has assets, s/he may be required to help pay for the costs you incur in hiring your own lawyer.

MORE  LAW  INFORMATION  BELOW

This website and the companion website provide general information. It is not legal advice. All information is copyrighted. Look to the book Canadian Law and Business Studies for law information on 20 other legal topics:  https://bit.ly/3Ay0lSR.

Can I make a will on my own? Yes. Do I need a lawyer to make a will? No. How do I make a will by myself? In SOME jurisdictions, you can make a holograph will - a signed and dated handwritten will.

What is a holograph will? Here is what Alberta’s Wills and Succession Act says about that: Holograph Will:  Section 16: “A will may be made by a writing that is wholly in the testator’s own handwriting and signed by the testator without the presence or signature of a witness or any other formality.” 

Ontario’s Succession Law Reform Act says this about a holograph will:  Section 6: ”A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.” Section 7(1) says: “In so far as the position of the   signature   is concerned, a will, whether holograph or not, is valid if the signature…is placed at, after, following, under or beside or opposite to the end of the will… .” 

Depending on the law where you live, one does not need a lawyer or witnesses to make a valid will. But this is just a fact – legal information – not legal advice that takes into consideration the maker’s circumstances and estate. 

Caution: In many cases, someone who makes a will, without the assistance of a lawyer or legal advisor, may stumble – mess things up – and their instructions and wishes pertaining to their estate are not fulfilled or carried out. Nothing on this website is legal advice or opinion. It is merely information. The authors are not practicing lawyers or legal advisors. This is merely information. Please read all cautions, notes, and disclaimers.

The person who makes a will is the testator. The person who carries out the instructions and wishes of the testator is called the executor, executrix or trustee. The executor, executrix or trustee may or may not benefit from the estate but in either case may be compensated for the work involved in “administering” the estate. Those who benefit from the deceased’s estate (assets after all debts have been paid) are commonly called beneficiaries. Note carefully that the contents of the “holograph” below are not intended to be used by anyone. The language may be incorrect or insufficient and the overall contents may be inappropriate for you or your circumstances. Consult a legal advisor for advice. This is merely general information not addressing anyone’s situation or concerns.

A holograph will (but do note the CAUTIONS): [Testator identification and Date of Making of the Will >] This is the last will and testament of me, Lin Sing, residing at 400 Elm in the City of Troy, being of sound mind on this __day of ___, 20 _ _, the date of the making of this Will. [Revocation of prior Wills; Naming of Trustee to Administer >] I revoke any previous wills made by me and I hereby appoint,  Lori Ing,  to be my trustee (executrix). [Powers Given to Trustee to Carry Out Testator's Directions >] I give my trustee all powers necessary to take all, pay my just debts, and then to pay all as I set out in this will. Without in any way limiting the generality of the powers given to my trustee to administer my estate, I direct my trustee to use her discretion in the realization of my estate with power and discretion to sell and convert into money any part of my estate at such times and in such manner and on such terms as she may in her discretion decide.** [Gifts and Bequests; To Whom What is Given >]  I give, devise, and bequeath:  (1) to “A”, my cousin, at 1 Main Street in Seville, my “XYZ sport vehicle”; (2) to “B”, my best friend, at 40 Pine Street in Ellaville, the sum of $X. [Dealing with what is left - the residue which, in some cases, is the bulk of the estate >] I will, devise, bequeath and give all the rest and remainder of my property and estate of every kind and character, including, but not limited to, real and personal property in which I may have an interest at the date of my death and which is not otherwise effectively disposed of, to “C” who presently lives at… . [Wish of Testator >] I wish my trustee to know that upon my death, I wish to be cremated.    Signed by me, Lin Sing X__­­­­­­­­_­­­­­­­­­_________ [Read the CAUTIONS on this site]

CAUTION: Readers are reminded that this website only provides information and is not making any recommendations or giving any advice as to proper wording or contents of a Will. Nothing herein is legal advice: DISCLAIMER. Check with a lawyer or legal advisor in your jurisdiction. The authors of this information are NOT lawyers or legal advisors. Material is copyright protected.

**Powers given to a trustee are often all encompassing. In granting such powers, the testator must be sure such a trustee is trustworthy, has the required ability, and is wiling to so act. Please read all the CAUTIONS on this website.

Have a look inside the book Canadian Law and Business Studies for law information on 20 other law topics: https://bit.ly/3Ay0lSR

Wills Made Without the Help of a Lawyer: "John Coupar, a partner at estate planning firm Horne Coupar LLP in Victoria, B.C., says a good percentage of his company’s work focuses on fixing problems in wills — especially when they’re drafted without the help of a lawyer." Source: Lawyers are making big money off ‘poorly drafted homemade wills’ (msn.com)  

When should I make a Will? This question is sometimes phrased as, “When should I create a Will?” The following may help YOU determine when YOU should make a will. One never knows what occurrence or tragedy may occur without regard to age. In other words, many people pass away when young. Whether one is married or single, should also not be a determiner of when you should make a Will. Both single and married people may die with assets (bank accounts, GIC’s RRSPs, a vehicle, and other assets) and debts and no legal record or direction of what they want to happen after they die. 

What is an intestacy? Those who die without a Will die intestate and the laws of the province will apply to what happens to their ESTATE – the net value of the assets they leave behind. Without a Will, the first order of business may have to be someone going to Court to become the administrator of that Estate to arrive at its net value (after payment of mortgages, other debts, funeral expenses, etc.) Then, the net value of the Estate is paid out and distributed according to rules set out in statutes – rules the deceased may not have liked. In other words, succession laws or other statute laws apply to that Estate (and not what the deceased would have liked to happen). 

Finally, be assured that most Wills are made when there is no expectation of imminent death. Also, making a Will does not hasten your demise. Early on in life, it is prudent to discuss a Will and Power of Attorney for health and property with your legal advisor. This is merely general law information.

Why should I make a Will? The following is not a complete answer but by making a Will, YOU determine who will be the administrator or trustee – the person in charge of doing what you direct, and what you wish with reference to your burial and who receives the benefits of your ESTATE. Your Will, to a large degree, determines “who will get what” from your ESTATE – the assets you leave behind after payment of all of your just debts.  Note that a Power of Attorney does NOT apply after one dies.

Check our companion site to see if there is additional introductory law information on this topic: https://www.fera-gasparini.ca.

What is capacity to make a Will? This “question” arose in a recent case. The day before, the “testator” had been drinking heavily and had smoked some “weed”. On the day, he made the Will, he committed suicide. The appeal court determined he still had capacity as the signed writing (seen as a holographic will) showed he understood the nature and effect of a will, was aware of his assets and what he was giving to whom (on his death), and understood that he was excluding some people from benefiting from bis assts. For a more precise account of this case, see McGrath v. Joy, 2023 ONCA 46. A suicide note may be a “will”. Indeed, in this case, what some alleged was a suicide note met the requirements of a holographic will. Capacity more often pertains to such things as age (of majority) and mental competence or capacity (other than impairment by drink or drugs).

What is a codicil to a will? A codicil is an amendment or change to the original will. Generally, a codicil explains, modifies, or revokes part of a will. This has to be precisely drafted. The codicil has to invalidate or change certain things in the will,   set out those changes in the codicil,   and leave the original will otherwise intact. When the changes or amendments are significant or numerous, most legal advisors prefer to draft a new will and revoke the old one  (rather than change the old one by using a codicil).

Are power of attorney and executor the same?  An "attorney" (relative, friend or lawyer) named in a power of attorney and an "executor" named in a will are both trusted individuals. They are trusted by the person who signed the power of attorney or the will to carry out their instructions and directions. Remember that the power of attorney is only effective in giving the "attorney" power while the donor or giver of the power of attorney is alive. The "executor" has the powers given in the will once the testator (maker of the will) dies.

Look inside the book Canadian Law and Business Studies for law information on 20 other legal topics:  https://bit.ly/3Ay0lSR.

What is probate? The deceased has left a will. Probate is court endorsation or approval that (i) the will submitted is indeed the LAST will of the deceased, and (ii) the Trustee (executor or executrix) named in the will is authorized to sign and act for the deceased’s estate. What’s involved to get probate? It is not an overly complex process. In Ontario, it may be procured electronically by email. The estate trustee seeks a Certificate of Appointment as Estate Trustee. 

When is probate required? If real estate forms part of the assets left behind by the deceased, then probate will be required. It will also likely be required by the banks and other institutions especially if any financial instrument is over $10,000. Check with your legal advisor.

Squabbling Among Siblings as to Inheritance Not Uncommon: 

• This case helps to understand some of the basics of probate and settling an estate. 
• Two of the adult children applied to probate the father’s will (that is, to get the will officially validated by a court). 
• In the meantime, the 3^rd child, William, claimed there was a more recent version of the last will and testament of the deceased but delayed in producing it. 
• Ultimately, probate was granted to William but then the other two children brought a court application to revoke the grant of probate to William and for an order appointing one of them, Mike Jr., as administrator of their father’s estate. They were successful. 
• The estate had received a clearance certificate from the Canada Revenue (indicating all taxes had been paid), and so there was nothing left to administer other than the distribution of the estate to the beneficiaries. 
• However, based on William’s unreasonable opposition to the passing of accounts, he would receive $5000 less because of extra costs incurred. 
• Such accounts contain information about money and payments the estate received, expenses incurred to administer the estate (including legal and accounting fees and the administrator’s fees) and where money was spent to administer the estate. 
• Where the beneficiaries do not agree with the accounting, an application may be brought to the court for its review and approval of the accounts. 
• The case: 2022 MBKB 199 (CanLII) | Estate of Mike Tarabalka Senior | CanLII 

Using wills, probate, and death records to build your family tree: This is  not  a recommendation or endorsement,  but you may want to check this site to see if it is of interest:   Estate Law Canada: Using wills, probate, and death records to build your family tree.

What is a "power of attorney"? Why power of attorney is required or important? It is a written document in which the person signing - the grantor - gives someone else (called the attorney)  the ability to sign on their behalf and to bind them. The power of attorney document will specify the matters for which the attorney may be called upon to sign in place of the grantor. Often a person has (i) a power of attorney for property and money matters and (ii) another power of attorney for health care should the grantor be unable to direct or consent to health care. The attorney given these powers may be a lawyer but it is often a spouse or close relative who is trusted that has the power to sign and bind the grantor on certain matters. A power of attorney ceases to be effective when the grantor dies. BUT powers of attorney are often made to be enduring and apply during the time that the donor is incompetent temporarily or permanently - unable to attend to his or her affairs - and hence are so important when that occurs (due to aging, health conditions, accidents or other or trauma).

Look inside the book Canadian Law and Business Studies for law information on 20 other legal topics:  https://bit.ly/3Ay0lSR.