December 15th 2019
Meeting with a lawyer to discuss your will is an important decision. While the topic of what happens to you when you pass away is uncomfortable for many, the challenges that will face your loved ones in the event you 
do not have a will should be motivation enough. Your will is formally called a “Last Will and Testament”, and if you did not prepare one, you are said to have died intestate. This article sets out the main components of a will and highlights some consequences when a will is not prepared.
As long as you are over the age of 18 and have sufficient mental capacity, you can prepare your will. If you lack capacity, whether through illness, injury, or declining mental health, you may lose the ability to prepare a valid will. It is counter-intuitive, but the best time to prepare your will is when you are perfectly healthy.
One of the first things a testator must decide is who will be responsible for administering their estate. The estate refers to all of the property and belongings a deceased holds a legal interest in. More than one person can be selected as the estate trustee. The estate trustee must locate and identify all of your assets while ensuring that any debts or liabilities are paid or settled. As it is becoming more common for individuals to have assets in online accounts, a will could identify where such assets may be found. The estate trustee must also make funeral arrangements, ensure tax compliance with the CRA, and ultimately distribute any specific gifts and residual assets to beneficiaries. Since there is much responsibility, it is a good idea to discuss this role with the person before appointing them as estate trustee in your will.
Deciding ‘who gets what’ is a central component to any will. This is because the law sets out who is automatically entitled to claim an interest in your estate if you do not identify beneficiaries in your will. While there are too many scenarios to discuss in the scope of this article, it may be a surprise to learn that for unmarried couples who do not meet the requirements of ‘spouse’ under s.29 of the Family Law Act, the surviving parents are entitled to share the estate equally in an intestacy. It is important to note that the law, namely the Succession Law Reform Act, requires that a deceased has made adequate provision in their will for dependants. This is defined as a spouse, common-law spouse, same-sex partner, parent, child or sibling of the deceased to whom the deceased was providing support immediately before death. The court may require that a dependent is compensate out of the estate, but such a lack of predictability means additional stress and legal cost for those involved.
Michael Liddiard, BA MA JD | Liddiard Law Professional Corporation | michael@liddiardlaw.ca