AREAS OF PRACTICE

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Wills

 

A Will is a written document that sets out a person’s wishes about how their estate should be distributed or protected after they die. A Will only takes effect upon the death of the testator, i.e. the person who creates and executes the Will. By contrast, certain types of trusts, namely inter vivos trusts, can take effect during a person’s lifetime.

 

When a person dies with a Will, their estate is distributed according to their directions in the Will. When a person dies without a Will, also referred to as dying 'intestate', the distribution of their estate is determined by provisions set out in Ontario's Succession Law Reform Act.

 

There are numerous consequences of dying without a Will or without proper estate planning, including an inappropriate distribution of assets; emotional strife; family conflict and possible litigation; additional tax liabilities, costs and delays; and wasting of assets while no one has authority to manage or distribute the assets of the estate. 

 

It is for these reasons that it is so important for adults to create a Will to ensure that they can dictate how and when their estate will be distributed after their death. Updating a Will is equally important upon a life-changing event such as a marriage (which revokes a prior Will unless the Will is created in contemplation thereof), divorce, the birth of a child, recent acquisition of property, or the death of a family member.

 

At a minimum, a person could write a holograph Will, a Will that is dated, signed, and written entirely in the testator’s own handwriting, to communicate how they wish their property to be distributed upon their death. Unlike other Wills, holograph Wills do not have to conform to the usual statutory requirements in order to be valid and may be helpful in times of an emergency.

 

For a Will to be valid, the document must comply with certain requirements or formalities relating to the execution of the Will. The Will also must be a free and true expression of the testator’s wishes, and not the result of any undue influence or coercion imposed by any other person.

The normal presumption that a Will has been validly executed is reversed where there are any suspicions concerning undue influence or coercion on the testator. Among the most common grounds for challenging the validity of a Will include lack of testamentary capacity, undue influence, or certain formalities not being complied with, such as improper witnessing. It is essential that the formalities of execution of a Will are understood and properly complied with as contesting a Will is a very stressful, time-consuming, and expensive process.​

 ​Trusts

 

Trusts play a vital role in the protection of assets, wealth preservation and the protection of beneficiaries with special needs. A trust is not a legal entity or a legal person (like a corporation), but a type of relationship. It is a legal relationship or arrangement among three parties. The 'settlor' is the person who sets up the trust and contributes assets to it, while the 'trustee' is a person (or entity such as a corporation) appointed by the settlor to have control over and manage the trust property for the benefit of another, the 'beneficiary'. While the beneficiary enjoys a beneficial interest in the trust property, the trustee retains legal ownership of the property and is under a fiduciary duty to comply with the terms of the trust, to exercise care and diligence in dealing with the trust property, and to act solely for the benefit of the beneficiaries.

 

A trust may be established during a settlor's lifetime (an inter vivos trust), or it may be created in a Will and only take effect upon a person's death (a testamentary trust). A trust is created when a person transfers ownership of their property or assets to a trustee, who is obliged to hold the property for the benefit of another person, the beneficiary of the trust. A trust offers flexibility with respect to tax and financial planning, and it is an effective tool to provide preservation and management of funds for loved ones. Trusts are a vital tool to provide additional protection for minors or for persons who have special needs. 

The existence of a trust relationship has particular tax consequences that must be carefully considered in order to ensure that it is properly structured from a tax perspective. 

 

 

It is vital that your lawyer has the expertise required to deal with particular situations and differing client priorities, which may include minimizing taxes, establishing trusts, and providing for beneficiaries with special needs. Effective trust, tax, and estate planning requires a clear understanding of these areas of law and a careful assessment of your individual needs and objectives. With proper advice and planning you can have peace of mind in knowing that your loved ones are cared for and your assets are sufficiently protected.