March 7, 2024
IS THAT WILL VALID?
I am writing this in November, which is “Make A Will Month”, but not just to remind you that any time is a good time to make a will.
If you don’t need another reason to do so how about this – without a will, your assets are frozen until the court appoints an Estate Trustee, which takes weeks at best. This recently happened to a friend of my mother.
THE ISSUE
My theme today instead is the validation of wills. Ontario altered the law of which came into effect January 1, 2022. We have now seen enough decisions from the court to observe some trends:
- Judges are taking a liberal approach to applying the new provisions
- They will exercise their power to give effect to the deceased’s intention, rather than being obsessed with technicalities
- Factors considered include:
- Is it clear that the intention was “fixed and final”
- How old the document is (the closer to the date of death, the more likely the intent remained the same)
- The nature of the “error” in the will
- Where the document was stored
- Other declarations made by the deceased about having made a will
This may, among other benefits, solve the problem of “will kits” purchased in a store, or more likely, found online. If not properly witnessed, these documents create problems – under the formalities of will preparation, the words handwritten in the blanks can be a valid holograph will, but the court was supposed to ignore any typed portions. Now, judges may validate the entire document.
TAKEAWAYS
This is not a solution to all problems of will drafting – people have one more issue to argue about if the will is not formally correct. So, it is still best to have your will prepared by an experienced estate planning lawyer, who:
- knows the right questions to ask.
- knows how to express your intention.
- knows the formalities.
- will follow those formalities.
- can provide useful evidence as to your capacity to make the will.
- can help rebut suggestions of undue influence.
WHAT WEILERS LLP CAN DO TO HELP YOU
There are many good estate planning lawyers in Thunder Bay. A few of them are at Weilers LLP, where they range in age, personalities, and interests, but are all interested in your estate planning and capable of being that trusted advisor. We will get the formalities right, and if necessary, provide evidence to maintain the validity of your will. The cost is modest- much less than a Court Application to validate the will (which we can also do if you are the beneficiary).
There are no obligations attached to giving us a call and starting the conversation about your estate plan. Why wait?