March 15th 2023
If you are reading this, then at one time in your life, you will need to be involved with a lawyer. .jpg)
Many people need a lawyer for the purchase or sale of a home, some people unfortunately need lawyers to resolve civil disputes or criminal charges. Someday, everyone is going to die, and a lawyer will be involved with their passing: either to prepare for it, to help the heirs administer afterward, or both. In this two-part newsletter, we will review a few situations that demonstrate the importance of consulting with a lawyer while you are healthy, to avoid a number of complications that can arise after your passing.
Whether John Smith passes testate (with a will) or intestate (without a will), the same thing happens at the moment of death, he legally becomes ‘The Estate of John Smith.’ Everything he owned, his house, his car, his bank account, his lucky tie, it’s all owned by this entity that was created, almost like a corporation, to act as a placeholder. The law presumes that everything is owned by someone, and since you can’t speak for yourself, something must be invented to speak for you. The exception to this is when an asset is jointly held, for instance a joint bank account, or a house owned in joint tenancy, it will pass to the other owner entirely and immediately, because the placeholder isn’t necessary.
Much like a corporation, the Estate doesn’t truly exist without someone being put in charge. If John Smith died testate, his will should name someone who he trusted to administer his affairs as his 
Executor (sometimes also referred to as Estate Trustee). If he died intestate, or if the person the will named as executor is unable or unwilling to act as the executor, there is a series of people who are presumed to take on the role by law. The Succession Law Reform Act sets out that the first to act would be the spouse, then the children, then the parents, then siblings, then nephews and nieces, etc. If there is someone in this list who you would not want to see manage your Estate, or receive an inheritance from you, then getting to decide who will administer your estate is the first reason to make a will.
The second reason to make a will is because if you die without a will, the law provides for a default 
set of rules on who receives your inheritance. These default rules under the Succession Law Reform Act set out who will legally be your beneficiaries if you die without a will. However, these default rules may not match your present wishes. Maybe you want your spouse to inherit everything when by law they receive a portion and must share with all of your children. Maybe you do not want a specific sibling, child, mother, and grandparent to inherit for one reason or another. Perhaps one of your children is a recipient of the Ontario Disability Support Program and receiving an inheritance means they are no longer entitled to government benefits. Last, you may have a friend or a charity you want your money to go to. The law does not provide any benefit to friends or charities. This means that preparing your will gives you total control of your assets to ensure they go where they need to go, rather than in the hands of the government or be caught by legal claims from competing beneficiaries.
A third reason to make a will is if you have minor children. A directive in your will setting out who you wish to be granted a temporary guardianship, and who you would like to apply for permanent guardianship, is of great assistance in making sure that your children are taken care of by someone you trust. The topic of guardianship is complex, and we recommend consulting with a legal professional to determine how best to protect your minor children through estate planning.
One question you might ask is when it might be time to draft your will and how often it needs to be updated. While no two situations are unique, it is always best to prepare your will when you are healthy, regardless of your age or asset situation. This is because if you lose capacity through illness or injury, you won’t be able to draft your will. This also means that once your will is prepared, you might not need to update it until your life situation changes. This could mean you have purchased or inherited land, you have children or grandchildren, you are travelling, or are facing a critical illness. You might also need to update your will if someone you have named has died or lost capacity. In this situation, you might need to change your beneficiaries or executors. On average, it is good to review your will and estate plan every five (5) years from drafting, although changes may not always be necessary.
If you are considering drafting a will, or are long overdue for a will update, feel free to reach out to Liddiard Law today for a free consultation.
Benjamin James Pinfold, BA JD CEA
Liddiard Law Professional Corporation