Wills in Ontario -what you should be aware of . . . and why its the law to have a will drafted by a lawyer ONLY

by Doug Cumpson
(Hamilton, Ontario, Canada)

Wills . . .

What’s the difference between a will developed by a lawyer and me writing my own will?

The first thing that comes to mind . . . Is the word dispute.

The laws in Ontario are vague and clear at the same time.

They lead you to believe that you can develop your own will – based upon your wishes – but in the face of objection of family members etc. These often are challenged by people.

Fact is; when people are struggling with their personal financial situation or caught in belt-tightening economic times – the inheritance and or the will becomes the focus and often are challenged by people relying heavily upon anticipated funds to ease their financial burdens – not to mention the family disputes that erupt with more complex family situations where there are extended families and who said what to whom in the past.

Not to mention the business entities involved . . . all drive emotions and the challenging of a will.
Therefore the simple naive thinking that one can develop and write their own will is in this day and age not a wise thought.

People can argue that the person even writing the will did not have the education, experience and ability to craft a proper will to can attend to the needs of the beneficiaries, and can bring forth evidence of why or how the will should have read or be interpreted before the courts.

This challenging of the will is become more commonplace that most people realize, especially when the will was authored without legal advice or assistance.

Today the courts may decide that a will penned at a death bed or just prior to death (even sometimes before) are called ‘Ghost’ wills wherein it may be clear that some items were detailed but the court may decide upon examining a prior will or evidence brought to the court to be more representative of the current realities.

Further; coupled with the knowledge that health and personal issues can cause people into a mental deteriorated state of mind, which has been successfully argued that there may be some merit behind the platform of being of sound mind and body – before the execution of a will was completed.

It often is argued today that the person crafting their own will lacked the requisite capacity in terms of knowledge in crafting the will itself and the additional considerations of tax, the law, probate etc. and if disposed with such advice they would have never crafted their will in such a manner, not to mention their health state of mind and recent family squabbles that may or may not usually dissipate or disappear as evidence by past historical events and discussions. Furthermore – the sheer number of beneficiaries or people with a vested interest the more likelihood of the need to clarify and purify the contents of a will for everyone’s sake – including that of the court.

Did you know . . .
In the face of fear of creating a family dispute . . . often people will avoid the creation of a will and people don’t want to consider creating a will – but that is their first mistake as the failure to produce a will creates more expense as the cost to probate the will can be valuable funds that could pay the lawyer’s fees in part or whole or the funeral costs in whole or part.

Plus the issue can drag on for years as opposed to when there is a will – wherein the process is more concise and the issues are manageable on reasonably close timelines.

Therefore, it follows, people are well-advised to meet with a lawyer to draft their wills but many should consult their tax accountant or tax specialist either in concert with their lawyer or jointly by e-mail or face to face to ensure their desires are also best for tax purposes – as leaving a legacy of taxation on a beneficiary or yourself is not generally considered well thought out.

Contact us today for the tax advice and we will help you with selecting a lawyer that will have a checklist of information that you need to consider before drafting even the simplest of wills for yourself, your business and the power of attorneys.

For those with U.S. properties and/or income you must also pay attention to this closely as there are a host of U.S. personal tax issues that MUST also be addressed with a separate U.S. will and power of attorneys developed in concert with your Canadian tax and legal issues.

Doug Cumpson – Partner – Tax Specialist
GB Taxes & Accounting

50 Dundas Street East, Waterdown, Ontario L9H 7K6
905 667-8880 or e-mail doug@gbtaxaccounting.com

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