By: Reshma Kishnani – Wills and Estate Litigation

As an estate litigator, I am often asked, “Do I really need a Will?” followed by, “Do I need a lawyer to prepare my Will?”

A Will can protect your loved ones

Having a Will is important to protect your loved ones when you are no longer able to. It allows you to have control over who administers and benefits from your estate upon death. Through your Will, you can express your wishes as to who is appointed as executor of your estate as well as the custodian for your minor child(ren). Without a Will in place, your estate will be distributed in accordance with the intestacy provisions set out under the Succession Law Reform Act (“SLRA”) and potentially subjected to significantly more taxes than if you had engaged in some estate planning prior to death.

For example, if you have a common law spouse and it is your wish that they inherit your assets on death, if you die without a Will expressing it, your assets would be distributed to your next of kin per the intestacy provisions under the SLRA, which would not automatically include your common law spouse. This would be your children (if any), followed by any surviving parents, followed by any siblings, and so forth. If your common law spouse wished to inherit any of your assets, they would have to start court proceedings to make a dependant’s relief claim for their entitlement against your estate. It can be costly, time-consuming, and stressful, particularly at a time when they are most vulnerable.

Retaining a lawyer can protect your estate

Preparing a Will does not need to be complicated, and giving thought to your estate plans does not need to be strenuous. Though it can be difficult to consider your own mortality, obtaining legal advice to assist with this important task can be essential in protecting your estate. Moreover, while you do not need a lawyer to prepare your Will, doing so can be very helpful if litigation ensues against your estate about your testamentary wishes.

When you retain a qualified lawyer to prepare your Will and assist with estate planning, they will assess your individual circumstances. They can provide you with important information and tailored planning, including:

• An overview of the law, including what happens in an intestacy
• Customized advice regarding your assets
• A review of your family circumstances, including the status of your spousal relationship(s) (i.e., separation/divorce/common law)
• Strategies to protect vulnerable members of your family, such as your children or your pets
• Discuss tax implications on your estate

Your lawyer can provide options for safekeeping your Will, discussing your testamentary wishes with your loved ones, as well as guiding you in the selection of your executor and custodian for any minor children. In addition, your lawyer can arrange for a capacity assessment if there is cause for concern (or the possibility it may raise questions in the future), retain notes in their file on your instructions and testamentary wishes, as well as observe whether any parties are unduly influencing you with respect to your testamentary wishes. Your lawyer can also ensure that your Will is properly executed and updated, if necessary, should your personal circumstances change.

In the event a dispute or litigation arises after your death about your testamentary wishes, your lawyer‘s file and testimony can be of great assistance to the court in ensuring your Will is upheld. One of the most common estate disputes involves Will challenges on the basis of testators’ testamentary incapacity when they execute their Will.

Examples

In recent years various judges have commented on the weight they have given to lawyers’ notes and testimony in Will challenge cases. Kay v. Kay Sr., 2019 ONSC 3166 (CanLII) is a Will challenge on the basis of testamentary incapacity, where Justice Maranger noted that the evidence of the drafting solicitor who had met with and spoken repeatedly with the testator should be preferred over a retroactive capacity assessment. In the case of Kates Estate, 2020 ONSC 7046 (CanLII), Justice Gans relied on the written notes and oral evidence of the testator’s lawyer to support his conclusion that the testator had testamentary capacity to make changes to her Will whereby she disinherited her brother from her Estate. This was after she had experienced some cognitive decline. Very recently, in Zaretsky v. Zaretsky, 2022 ONSC 3165 (CanLII), Justice Hood preferred the evidence of two professionals, a doctor and a lawyer who had actually dealt with the testator at the time she signed her Wills, in concluding that the testator had the necessary testamentary capacity to execute her last Will and that her last Will should be upheld.

The courts have repeatedly preferred the evidence of a testator’s lawyer who is engaged at the time the testator’s Will is prepared and executed. Often it is over that of disputing beneficiaries (whose evidence can be self-serving), or experts (who can often only provide a retroactive analysis as they are retained post death), when assessing whether the testator had testamentary capacity to execute their Will.

Conclusion

Retaining a lawyer can assist with your Will, provide creative estate planning strategies with respect to your assets, and add protection to safeguard your testamentary wishes if disgruntled beneficiaries engage in litigation against your estate after your death. The value of obtaining legal advice and retaining a lawyer to assist with the preparation of your Will can far outweigh the cost and protect your estate from being involved in lengthy and costly litigation years after your death.

If you wish to discuss any of the above in greater detail or would like any additional information on estate litigation, contact Reshma Kishnani at rkishnani@mindengross.com or any lawyer in our Wills and Estates Group.