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Mississauga Wills & Estates Law Blog

Wills in Canada: What's important to know

No one likes to thing about his or her own demise, but that day is coming for everyone. With that in mind, some consideration should be given to what happens to assets upon an individual's death. Yet, about half the adult population in Canada die intestate – or without wills. If that should happen, family members would have the burden and emotional stress of trying to decipher who gets what – or worse yet, that job could fall to the government.

Those living in common law relationships may not receive anything from their partner's estate unless the partner left a will. In British Columbia, a legally married spouse of a deceased individual will get the first $65,000 of the estate. If there is anything remaining, it would be split between any children and the legal spouse.

When Green Acres becomes a black hole in estate planning

In the film Gone With the Wind, Scarlett O'Hara realizes there is nothing more valuable than the land which is owned by her family. Many people in the throes of estate planning in Canada should take into consideration that property may be one of the assets their heirs would most like to have. Sometimes that can cause problems, considering the family farmhouse usually can't be split in half.

Such was the case with four Ontario siblings who were left a farm complete with a farmhouse. One of the four had been living in the home for a year without paying rent and wanted to continue to do so indefinitely. She said she shouldn't have to pay rent since she grew up there. No formal agreement regarding the division of the family estate was left, so what is the recourse of the three other siblings?

Ontario estate planning and property in common law marriages

Some common law couples assume that because they live together and share their lives as though they are legally married that the law views their situation in the same light. In terms of estate planning issues in Ontario, that is not always the case. Even if a couple has lived together for decades as a common law husband and wife, they have different property and legal rights, including the sharing of a matrimonial home or any other property.

The rules are slightly different for each province, but in Ontario, if a common law spouse dies, the remaining partner is not automatically entitled to inherit any portion of his or her deceased partner's estate. This is part of the reason common law spouses need to be included in estate plans that include wills. There are things common law spouses can do to ensure they will be looked after when their partner passes away.

Affluent Ontario business owners may face estate planning issues

Successful business owners are busy people and consequently might put important things directly unrelated to their businesses on the back burner. Such could be the case with estate planning. Ontario entrepreneurs may be put off by the complexities of working on their estate plans, especially if they intend to pass down the business to their heirs. So, an exit plan is likely just as important as a startup plan.

Entrepreneurs wishing to keep their businesses in the family should focus on who they will want running the operation once they're not around to call the shots themselves. Plans might include ideas on how to keep the business lucrative and what could be put into place for the successful retirement of the first generation and for a subsequent generation to take over. The creation of an Individual Pension Plan (IPP) might be something for business owners to consider.

Wills in Ontario and the conditions in them

Writing a will is not as easy as scribbling down a few words and paper and rifling it into a drawer somewhere. Wills and estates law is often complex and Ontario residents writing a will can't just insert conditions on a whim and expect them to be legally binding. A testator (the maker of the will) must be abundantly clear when leaving gifts in his or her will.

The wording of a will is extremely important. It should be written concisely and ideally, using appropriate legal terms.  There have been instances when courts have disallowed the last wishes of a testator because the will was either uncertain or because it went against public policy. For instance, a gift can't be contingent upon someone committing any sort of crime, be discriminatory against ethnic or religious groups, ask someone to give up parental rights or ask someone to separate from a spouse.

Do fiduciaries in Ontario have a say in end of life matters?

Making the decision to take a loved off life support is perhaps one of the most emotionally fraught decisions family members will ever have to make. Ontario residents on life support, without powers of attorney, living wills or fiduciaries could end up having the government make end-of-life decisions for them. Those decisions could come from the Consent and Capacity Board, which is an independent medical review panel mandated under Ontario's Health Care Consent Act. 

Ultimately, it is this board that decides whether appointed decision makers like fiduciaries or powers of attorney are acting appropriately when making life-ending decisions. One thing that is taken into consideration is whether taking extraordinary measures constitutes treatment or simply extending the life of someone who will likely never regain consciousness. Another is cost. It is estimated that one year in the ICU costs about $1 million per patent.

Ontario estate administration: Declaring someone officially dead

Most often, there is no question that someone has died. But when someone has been missing, it's a difficult call to make, especially when dealing with estate administration duties. In Ontario, as in the rest of Canada, there are procedures to follow when declaring someone officially dead.

Before a person's assets can be distributed, an official declaration of death has to be issued. In most instances, this is a relatively simple process. But if a person has been missing for quite some time and there is no real indication of death -- no mortal remains have been found -- then things could get complicated. People disappearing is not common, but it has known to happen. There have been instances when someone has been declared dead only to show up years later. 

Estate planning: "Do not resuscitate" orders in Ontario

There are people who have made the decision not to be brought back to life if their hearts stop. The do not resuscitate order, or DNR, is one where people do not want any emergency lifesaving measures to be used to keep them alive. This order, which can be a part of estate planning in Ontario, is often used for those who are terminally ill and gives medical personnel clear directives.

Even though those wishes are clear, the law surrounding them can sometimes be murky. Although patients or legally-appointed guardians can refuse treatment such as CPR or defibrillation, there may be some contentious issues with doctors regarding the directive. Stating these wishes in a power of attorney when estate planning is very important. When a DNR order isn't mentioned on a patient's record, the patient will receive emergency treatment to try to prolong the patient's life.

The role of a fiduciary in Ontario

Most people know what an executor is. But when it comes to the term, "fiduciary," it's likely many Ontario residents don't have a clue what the term means. In estate planning, a trustee is the ultimate fiduciary.

A fiduciary is a person (or even a company) who has the trust and confidence of another person or persons. This responsible person or company has four main duties regarding the management and administration of a trust, which also includes investment. Those four duties include the duty of loyalty, the duty of care, the duty of even-handedness and the duty not to delegate. Often the terms trustee and fiduciary are used interchangeably. 

Becoming the guardian of an Ontario elder

Aging is a part of life, and consequently, many people need extra help when they get older, some more than others. This could lead to having a talk about care. Becoming the guardian of an aging loved one in Ontario requires careful thought, especially when a senior is beginning to show signs of dementia or confusion. Those caring for people who are finding it hard to make decisions regarding their own health or other things in their lives may want to discuss guardianship with the individual.

Anyone who is looking to become a person's guardian must have the person or ward declared incompetent in court. If the court finds the ward to be incompetent, things like managing resources, decisions regarding health care and living arrangements all fall to the guardian. When more than one person is vying for the position, the court will choose the person it deems best qualified. The ward's wishes are taken into consideration, if possible.