The Importance of Having a Will

June 18, 2012 Hull & Hull LLP Estate & Trust Tags: , 0 Comments

It was Benjamin Franklin who famously stated, "The only thing certain in life are death and taxes".  Beyond these two certainties, surely is another certainty, that is, upon the death of an individual, the remains of their property, however big or small, are to be distributed.  This means that a will plays an integral role upon an individual’s passing.  Whether a client is one of modest or limited means, or whether a client is of extravagant or unlimited means, the importance of having a will cannot be understated.  Much of the reasoning supporting an individual taking the time to execute a will applies to all types of clients, wealthy or not.

One justification for having a will is to eliminate family fighting over the disposition of assets.  In other words, a will helps to keep the peace.  So long as a client’s will clearly demarcates how the assets are to be divided, it has the effect of reducing the amount of hostility felt towards family members who each may believe they are deserving of a bigger piece of the pie.  Whilst it is true that a will cannot guarantee that no litigation will arise, if the will ends up being litigated over, a will and corresponding drafting solicitor notes should offer insight into one of the most important questions asked by the court, "what was the intention of the testator".

Not only does a will have the potential to save family members from fighting amongst each other as mentioned above, it also allows a testator to appoint guardians, most notably for minors and those who lack capacity, to ensure that they are adequately looked after.  Although there are provisions in the law to ensure that such individuals are cared for, knowing that there is someone trustworthy appointed to make the necessary decisions, may limit concerns as to how the individual is to be treated in the future.

A further justification for having a will is that it empowers the testator to decide who is to receive their property.  This is especially important for a testator who may only have a few cherished possessions and assets.  Failing to draft a will results in an intestacy.  This has the effect of letting the law decide under Part II of the Succession Law Reform Act, RSO 1990, c S.26, who is to be in receipt of the intestate’s property.  Following the law of intestacy has the effect of bequests falling rigidly according to the law which may or may not be to the desire of the intestate.

Lastly, a carefully drafted will, or wills, have the potential to reduce one’s exposure to estate administration tax.  This has the obvious consequence of a greater percentage of the assets flowing to the beneficiaries.  In the Ontario Supreme Court decision of Granovsky Estate v. Ontario, 1998 CanLII 14913 (ON SC) the testator created two wills, a primary will dealing with assets subject to estate administration tax, and a secondary will dealing with assets falling outside estate administrative tax, such as shares of private companies.  It was held that only the primary will needed to be submitted for probate (now referred to as a certificate of appointment of estate trustee with a will).  Testators have since followed this trend and have created separate wills for assets that require estate administration tax to be paid.

Ian Hull – Click here for more information on Ian Hull

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