Tag: testamentary wishes
Many young families consider estate planning a task that can wait until their children are older, until they have paid off those pesky student loans from university or more importantly until they have acquired assets with significant value. However, an estate planning consideration that often gets overlooked is who will raise your child if you die while they are a minor.
When thinking about who will raise your child if you die before they reach adulthood it is usually the presumption that the other parent will be there to raise the child. So what happens if both parents simultaneously die in an accident? Or what happens if you are the sole living parent or sole custodian of your minor child (i.e. the other parent lost the right to custody by way of court order)?
Section 61 of the Children’s Law Reform Act (“CLRA”) contemplates these situations and provides:
- (1) A person entitled to custody of a child may appoint by will one or more persons to have custody of the child after the death of the appointor.
The testamentary appointment of a minor child is effective only:
- if the parent making the appointment is the only person entitled to custody of the child on the day before the appointment take effect; or
- if both parents die at the same time or in circumstances that render it uncertain which survived the other.
I am certain it goes without saying that the decision of who you will appoint as your child’s custodian is a decision that must be given considerable thought. However, it is especially important in these circumstances because your testamentary appointment expires 90 days after it take effect. Following the expiration of the appointment your chosen custodian must apply to the Court for a more permanent order of custody. Accordingly, regardless of your testamentary appointment your appointed custodian must be able to satisfy the court that a more permanent custody order is in the best interest of the child.
Although the thought of your child being orphaned while they are a minor is inconceivable for many parents, it may nonetheless be something to give some thought.
Thank you for reading!
Today on Hull on Estates, Noah Weisberg and David Morgan Smith discuss the recent English Court of Appeal decision of Ilott and Mitson which considers both estrangement and testamentary wishes in the context of dependant support and its application under Part V of the (Ontario) Succession Law Reform Act.
Should you have any questions, please email us at firstname.lastname@example.org, or leave a comment on our blog below.
A co-worker recently passed along this ESPN article chronicling the storied life of Ted Williams, arguably one of the greatest baseball players to have ever played the game. While I must admit that my love for sports stems from hockey and the beautiful game of soccer, as Estates lawyers, my co-worker and I were drawn to the issues surrounding the Last Will of Ted Williams and his burial wishes.
According to this Daily Mail article, Williams executed a Last Will and Testament in 1996 apparently indicating that he wanted to have his body cremated and his ashes sprinkled around his Florida Keys fishing grounds “…where the water is very deep”.
Notwithstanding the contents of Williams’ Last Will, it appears that some of his children approved the decision to have Williams cryogenically frozen. It seems that the motivation in part was a result of the vast amount of literature read by Williams’ son including The Prospect of Immortality which promotes that the “freezer always trumped the grave”. In addition, after his passing, his children produced a note signed by Williams and dated November 2, 2000 that his children “…and Dad all agree to be put into bio-statis after we die. This is what we want, to be able to be together in the future, even if it is only a chance”. Nonetheless, it remains unclear as to what Williams actually wanted.
Upon the passing of Williams, his body was flown to a cryogenics facility where Williams head ($50,000) and body ($120,000) were separately frozen and stored.
As a result of these actions, one of Williams children commenced a petition seeking the return of her father’s body to comply with the wishes set out in the Last Will. This claim was later withdrawn and to this day, Williams body remains frozen.
At this point, any Ontario Estates lawyer is probably reminding themselves that in Ontario, burial instructions in a Last Will are merely wishes and not binding. As a refresher, see this Hull & Hull blog with respect to the burial decisions surrounding Nelson Mandela.
Also of interest, it appears that Williams created an insurance trust for the benefit of his children only to be paid on the 10th anniversary of his death. This trust has now been dissolved.