Jul 7, 2023
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.
Cara Zacks
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.
Jun 30, 2023
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.
Rebecca Suggitt
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.
Jun 20, 2023
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.
Jun 19, 2023
Half of Canadians don’t have a Will. Many people think that only the ultra-wealthy would need an official document to distribute their assets after death. However, there are several reasons to talk to a lawyer about making a Will, regardless of how much your estate is worth.
You’re In Charge
A Will gives you the flexibility to decide where your belongings go after your death. Without one, you will die intestate. This means your spouse and/or children will likely receive everything.
Even if this was the plan all along, you probably have a few things you want to go to someone else after you pass away. You might want your favourite guitar to go to your bandmates, or your shoe collection to be donated to the Salvation Army. Without a Will, your loved ones will be left to sort through all your things and piece together where you would have wanted them to go.
Children
One of the main benefits of making a Will is to cement who will care for your children after you pass away. Having a document that names the trusted friend or family member of your choosing will help you rest easy knowing your children will be taken care of no matter what.
Pets
Wills can have special provisions for pets. You can set out who you would like your pet to live with after you die and you can even name a substitute person if your first choice is unable to care for them. This will greatly minimize the chances your pet ends up in a shelter. In addition, if you wish to set aside some money to care for your pet, your lawyer can help you set up a pet trust for the person taking your furry friend after you pass away.
Funeral and Burial
A Will is one of the best places to express your funeral and burial wishes. This can be a huge help to your loved ones, who can spend time grieving rather than deciding what you would have wanted.
How Do I Make A Will?
It’s always best to get help from a lawyer you trust when drafting a document as important as a Will. You might need some complicated provisions that only someone with years of experience would know about.
Making a Will is an easy way to ensure those you care about are provided for and have all the tools they need to take care of things after you die.
Colleen Dowling
Colleen has joined Casey & Moss as our summer student and will be returning as our articling student in 2024. She is an incoming third-year law student at Queen’s University. Her interest in Estate Litigation began while working as a caseworker at the Queen’s Elder Law clinic where she drafted Wills and Powers of Attorney for seniors who would otherwise have difficulty affording legal counsel. She is greatly looking forward to returning to the firm to complete her articles.
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.
Jun 8, 2023
As an Executor, it is your responsibility to determine the value of the Deceased’s assets as of his or her date of death. Depending on the relationship between the Deceased and the Executor, this step can be easy or a little complicated. If you are not familiar with the Deceased’s assets, below are some ways an Executor would be able to determine the assets of the estate.
- Review the Will, if there is one: If the Deceased left a Will there may be mentions of assets that they own such as real estate, bank and investment accounts, valuable household items, jewellery etc. This would prompt the Executor to go searching for those assets.
- Search the Deceased’s personal belongings: If you have access to the Deceased’s residence, completing a thorough search of the Deceased’s personal belongings can also provide the Executor with an idea of what the Deceased owned as of his or her date of death. For example, locating financial statements, tax returns, mail, emails, and loyalty cards.
- Contacting Financial Institutions: Another way to search for information concerning the Deceased’s assets is to contact banks, investment companies and credit unions to request information on all accounts they are holding in the name of the Deceased. This also gives the Executor an opportunity to identify the liabilities of the Estate as the banks would normally also provide information regarding any mortgages or lines of credit the Deceased may have had at the time of his or her passing.
Overall, investigating estate assets can be very frustrating and time consuming. But with a lot of patience and good record keeping, the Executor can locate these assets and prepare a work plan to properly administer the estate.
Felicia Cyril
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.
