Canada: Make A Will: Your Family Will Thank You - November 8, 2018

The Ontario Bar Association has designated November as "Make a Will Month". Its purpose is to encourage members of the public to educate themselves as to the necessity of making a Will and the matters to consider in doing so. I am taking this opportunity to provide a brief overview of some of the key considerations involved in making a Will. My hope is that it will encourage readers to consider the inevitability of death and take positive steps towards creating an effective estate plan.

Why should I make a Will?

If you do not have a Will, the law prescribes the recipients of your assets and the percentages that they receive. This can have serious consequences in circumstances such as one in which there is a surviving spouse and one or more children.

For example, you may have intended your surviving spouse to receive the whole of your estate. The mandated division of assets divides them between the spouse and children in a prescribed manner that may leave your spouse with inadequate assets. Furthermore, any assets passing to your spouse are not subject to taxation. Assets passing to your children rather than your spouse are subject to possible taxation.

Your children may be minors and, without a Will, you do not have the opportunity to set out the manner in which funds are distributed to them and over what period of time. There may also be reasons why you do not want to treat all your children equally, for example a child with special needs may require a larger proportion of your estate.

There are other important issues that you might want to deal with, including:

(a) the opportunity to plan the distribution of your estate in the most tax effective manner;

(b) the ability, if you are in a second marriage, to effect an equitable distribution of your assets between the children of your first marriage and your spouse from your second marriage;

(c) the opportunity to make specific bequests to children, charitable organizations or other individuals whom you might wish to recognize;

(d) the designation of guardians for minor children if you and your spouse die in a common accident;

(e) the choosing of executor or executors, being the person or persons who administer your estate;

(f) the ability to select specific assets to pass to specific children; for example, you may wish to treat your children equally by amount but, you might wish one child to obtain business assets and another real estate (a cottage, for example) or other non-business assets; and

(g) there may be specific personal items such as jewellery or artwork that you would like to designate to specific individuals.

This article merely highlights some of the most important reasons for having a Will. Depending on your particular family situation, there are many other matters that require consideration. I hope that this article inspires those of you who do not have a Will or have an old one in need of review to obtain professional advice, as necessary, and to put your affairs in order.

Your family will thank you.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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