Earlier this month, Greg Miller joined the Firm as an articling student. Greg is a graduate of Western Law, with distinction. He is an exceptional researcher, has a keen interest in litigation, and is an overall pleasure to have on our team. Welcome, Greg!
Greg can be reached at
Email: gmiller@caseyandmoss.com
Phone: 647.368.6556
Whether they died with or without a will, here’s a list of important information not to ignore:
1. Names: Include the full legal name of the deceased as it appears on their passport or driver’s license.
You should also provide any additional names that might be on their will, if there is one, or a death certificate if that information is different from their legal names.
For Example. Johnny Lee Williams is James Allan Williams, or Mikey is Michael.
Nicknames are great and hold sentimental value and endearment towards our loved ones, so keep that information close to your heart as it won’t be used in the application unless it’s listed in the will, codicil, or official documents.
This also applies to the legal names of the beneficiaries.
2. Marital Status: Previous Marriages, Divorces, Separations, and Common-Law Partners
Give us all the juicy details. Your lawyer will need to know their current marital status and if there are any additional statuses from the past.
For Example. Michelle divorced Mike in 2008 and is currently in a common-law relationship with Justin.
This allows us to provide the most accurate information on the application and lets us know if any additional documents need to be prepared and included in the application.
3. Children: If the deceased died with a will, the will would likely include the names of their children if they were listed as beneficiaries under the will, but in some instances, the will might say “To all my children”.
In the case where no children are specifically named in a will or there is no will, you should provide the following information: names of all the children, date of birth, address, and emails or phone numbers. If the child is a minor, then we would need the contact information for that child’s parent or guardian.
4. Beneficiary’s Relationship to the Deceased: Beneficiaries of an estate can include the deceased spouse, cousin, child, uncle, brother, sister, friend, or even their pastor. Along with knowing how the beneficiary is related to the deceased, we also need to know if any of the beneficiaries have passed away.
5. Joint Accounts: Not only does your lawyer need to know if the deceased owned any bank accounts, but also the institution where they’re held and the value of those accounts as of the date of death. Your lawyer also needs to know if any of those accounts are held jointly and the type of joint account.
Some accounts will fall into the value of the estate and affect the amount of estate administration tax payable. Others will fall outside of the estate and have no impact on the estate tax payable.
Even though a detail may seem minor or insignificant, it may still be an integral part of the estate. The more pieces we have, the easier it is to complete the puzzle.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Before January 1, 2022, Ontario courts would only consider a Will valid if the Will complied with the strict, technical formalities set out in the Succession Law Reform Act. For example, under the SLRA, a Will was only considered valid if the Will was in writing, if it was signed by the testator at the end of the document, and if it was witnessed by two or more people.
However, with the recent addition of section 21.1(1) to the SLRA, even Wills that don’t meet those formal requirements may be considered valid, as long as the court is satisfied that the document “sets out the testamentary intentions of a deceased”. This means the court now has the power to order that a document is as valid and as effective as a Will, even if it does not meet the requirements of a Will. This new section of the SLRA applies to Wills of people who died after January 1, 2022.
For a while, we didn’t have many examples of people relying on section 21.1(1). Now, however, we are starting to see the court interpreting section 21.1(1) in some recent decisions.
As expected, the court has relied on cases from other provinces that already introduced provisions similar to section 21.1(1) of the SRLA. In a series of recent decisions from the Ontario Superior Court from June 2023, the court found that even when a Will wasn’t witnessed at all or signed by the testator, the Will was valid because it recorded a “deliberate or fixed and final expression of intention as to the disposal of the deceased’s property on death.” If it is clear from the facts and evidence that the deceased intended the document to be a proper Will, it seems like the Ontario court will have little difficulty finding the document to be a valid Will.
In these first few cases interpreting section 21.1(1) of the SLRA, all the documents validated as Wills looked very much like a proper Will, but for a few key issues, like missing signatures. Only time will tell how far the court will go to validate documents that may set out someone’s testamentary intentions, but that stray even farther from the technical requirements of a Will.
Nothing contained in this post constitutes legal advice or establishes a solicitor-client relationship. If you have any questions regarding your legal rights or legal obligations, you should consult a lawyer.
Choosing to act as an incapable person’s attorney or guardian of property is a considerable and important responsibility. Part of that responsibility is keeping a clear record of all money coming into and leaving the incapable person’s hands. Pursuant to section 32(6) of the Substitute Decisions Act, attorneys and guardians of property are required to keep accounts of all transactions involving the property of the incapable person.
It is important for guardians to maintain accurate, thorough accounts for several important reasons. First and foremost, keeping proper accounts is a part of a guardian’s fiduciary duty to the incapable person and the legislation requires that you do so. Second, keeping thorough accounts can protect you from personal liability if you are required to pass your accounts. Third, the guardian’s compensation is tied directly to the incapable person’s receipts and disbursements.
Below are some helpful tips for guardians and attorneys keeping accounts:
1. If possible, speak with the grantor of the Power of Attorney prior to that person becoming incapable. Discuss their wishes, assets, and where they are keeping their will. Continue these conversations after you begin acting as an attorney or guardian and encourage your loved one to participate, to the best of his or her abilities, in your decisions about their property.
2. Review the Power of Attorney document. Often the Power of Attorney will stipulate whether there are any limitations on how you can manage the incapable person’s property.
3. If you are a guardian for property, you must follow the court-approved Management and Guardianship Plans. If any material change is required to your Management Plan, you should prepare an amended Management Plan and submit it to the Public Guardian and Trustee for approval.
4. Locate and review the incapable person’s Will. If property is specifically gifted in a will, it cannot be sold unless it is necessary to care for the incapable person.
5. When you are named guardian or begin acting as an attorney, make a list of all the incapable person’s assets (whether solely or jointly owned). Assets include real estate, money, securities, investments, motor vehicles, other personal property, etc.
6. Keep a record of all transactions you make on the incapable person’s behalf. It is important that you keep a copy of all receipts and bank statements. These can be maintained in a binder, or scanned into an electronic folder regularly. If maintaining these digitally, ensure that your files are backed up.
7. Keep the incapable person’s financial accounts and transactions completely separate from your own.
8. Consult regularly with the incapable person’s supportive family members and friends about decisions that you make with respect to the incapable person’s property.
9. Most importantly, the incapable person’s comfort and well-being should guide each decision that you make with respect to their property. You are required to exercise your fiduciary duties diligently, with honesty and integrity, and in good faith for the incapable person’s benefit.
10. You have a right to seek advice and direction from the court to deal with questions about your obligations, and the incapable person’s legal rights. This is not meant to displace your duty to make tough decisions as a substitute decision maker, but to provide you with judicial guidance in complex situations.
All of us at Casey & Moss are thrilled that our firm was voted as one of the Top 10 Wills, Trusts, and Estates Law Boutiques in Canada for 2023-2024. It is an honour to be recognized for a second time by our esteemed peers and colleagues in the Estates Bar.
Comments from referring lawyers and clients who participated in Canadian Lawyer’s survey spotlighted Casey & Moss’s strengths:
- “Each partner is a strategic, intelligent and fantastic lawyer.”
- “As a former client, I can attest to their quality of work and attention to their clients; they always strive for the best outcomes and are a head above the rest.”
- “Superb client service, reasonable bills, zealous but settlement-oriented advocacy.”
- “I was opposing counsel, and we efficiently resolved the issues for our clients. It was a pleasure to work with counsel, and what a rarity that is when you’re at opposite ends of the table.”
The firm distinguishes itself from others with its low staff turnover and a clear and concise purpose.
Click here to read the full article on Canadian Lawyer.