Toronto Wills and Estates Lawyer (Part 3): Do I need a Lawyer to do my Will?

Michael CarabashPlease note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to a Will, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you prepare and draft a Will.

In this blog, I’ll help answer the common question: is a lawyer required for you to have a Will?

While a lawyer is not legally required for you to have a Will drafted, reviewed, or executed, it is nevertheless in your best interests to do so. Only a few things are needed in order for a Will to be legally binding and enforceable. But if you don’t do these basic things properly, the Will may be contested through litigation, which could end up costing thousands of dollars (or more), destroying relationships, wasting years, etc.

In addition to ensuring that the legal requirements of drafting a Will are met and that the specific wishes of the Testator are addressed, a lawyer will typically deal with a number of other issues which could jeopardize the validity of a Will.

First, a lawyer will inquire into the mental state of the Testator. A lack of capacity to enter into the Will may be grounds to invalidate it. In Banks v. Goodfellow, 1870 WL 11622 – the English Court of Queen’s Bench famously wrote:

“It is essential to the exercise of (the power of testation) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

If there is a doubt as to the Testator’s mental capacity to enter into the Will (e.g. due to age or physical, mental or emotional illness, etc.), the lawyer may call an approximately qualified medical practitioner to be present at the time instructions are given. Those instructions may also be video recorded.

Second, a lawyer will also try to make sure that the Testator is not entering the Will as a result of some duress or improper or undue influence from an external force. The Testator must enter the Will freely and voluntarily or else it may be subsequently contested. A lawyer will typically exclude interested parties from being present at the time the Testator executes the Will.

Third, a lawyer will be able to discuss with you income tax, probate, and statutory claim considerations. When you die, you are automatically deemed to have disposed of (immediately before death) all your assets for fair market value under section 70(5)(a) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). As such, any resulting taxable capital gains have to be included in your income in that year. These capital gains, however, can be deferred through the use of a spousal rollover, which a lawyer can help structure. If you own shares of a qualified small business corporation (which a lawyer can advise you on), you may also be entitled to a lifetime capital gains deduction (which is presently $375,000). With respect to minimizing probate fees, there are a number of legal possibilities which can be canvassed with your lawyer – such as transferring assets into joint ownership, designating beneficiaries of RRSP’s, RRIF’s and insurance policies, establishing an inter vivos trust, and executing multiple wills. Finally, your estate may be liable to pay your dependents (pursuant to section 58 of the Succession Law Reform Act) and spouse (pursuant to sections 5 and 6 of the Family Law Act, R.S.O. 1990, c. F.3) more than what they would otherwise be entitled to under your Will. A lawyer can help you address these results. In the case of your spouse, for example, a lawyer can draft a marriage contract that would preclude your spouse’s ability to entitlements under the Family Law Act.

Finally worth mentioning is that (as will be discussed below), a lawyer is required to act in connection with International Wills.

For all of these reasons, it is generally advisable to contact a lawyer when you need to write or update your will.

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