Wills and Estate Law

Planning ahead with respect to your personal affairs can save your family problems and expense. Hammond Osborne can assist you with wills, estates, trusts and power of attorney documents and advice.

Wills and Powers of Attorney play a significant role in your estate planning. They permit you to structure your affairs both during your lifetime and after your death in accordance with your wishes.

You should think about changing your will whenever your financial or personal circumstances change or if there’s a change in the beneficiaries. It’s a good practice to review your will every three to five years to ensure that it still reflects your current wishes.

PURPOSE OF A WILL

The purpose of a will is:

  1. to provide for an orderly transfer of assets upon death in accordance with a testator’s wishes; and
  2. to avoid confusion and conflict in the distribution of a deceased’s assets.

FORMALITIES

The legislative formalities for preparation of a valid will are set out in part one of the Succession Law Reform Act (s. 26 Ontario E-Laws). Essentially, to be valid a will must be in writing, dated and signed in the presence of two witnesses. There are number of specific provisions relating to witnesses.

THE ROLE OF THE LAWYER

Generally speaking, the lawyer should meet with the client twice. In the first meeting, the lawyer should review with the client his/her family and financial circumstances, consider the client’s wishes and take instructions for the preparation of the will. In the second meeting, the lawyer should review the will with the client to ensure that the client fully understands and appreciates what is being signed.

CAPACITY

The lawyer must determine that the testator has the necessary capacity to make a will. The test is simple – is the testator able to name the members of his/her family and describe their basic circumstances and is he/she able to describe his/her financial circumstances, including income, obligations, assets and liabilities.

The lawyer should prepare notes from his conversation with the testator, which should be retained as a record as to the testator’s capacity at the time that the will was made. This record can be used as evidence of capacity in the event of an application for a declaration that the will is invalid due to lack of capacity.

For more information about how we can help you, we encourage you to contact our law firm to learn more during a consultation.