Getting your Will done
By Joanne Richard.
The pandemic has produced a rise in estate planning and wills. Some people are no longer putting off ’til tomorrow what they can do today.
“People are very worried about getting sick and possibly unexpectedly passing away, leaving a nightmare for their loved ones”
“I have been getting so many calls and emails from people who are very concerned about getting COVID-19 and not having an up-to-date will and powers of attorney in place,” said Les Kotzer, a Thornhill wills and estate lawyer at leskotzer.com.
“This has been a wake-up call to so many. People are very worried about getting sick and possibly unexpectedly passing away, leaving a nightmare for their loved ones,” Kotzer said.
Dying without a will leaves children, heirs and assets in limbo. A 2018 Angus Reid survey from January 2018, revealed that 51% of Canadians had no last will or testament. And of those who did have a will, 35% admitted to it being out of date.
“My concern is that how many of the other 50% who have wills have up-to-date wills? What about powers of attorney?” Kotzer asked. “So many people overlook their importance and never bother to make them.”
“Getting a will done always seems like something you can put off for tomorrow, and COVID encouraged people to get it done today“
Kotzer isn’t the only one seeing increased interest in getting their estate affairs in order. Willful, an estate planning platform that allows you to create a will online, has seen a spike of almost 600% in sales and website traffic.
Pandemic or no pandemic, Canadians should be prioritizing end-of-life planning in general, she said. “COVID has really highlighted that the unexpected really can happen anytime, and it’s caused those nagging items on our to-do lists – creating an emergency fund, getting life insurance, finishing your will or power of attorney documents – to rise to the top.”
Any adult with any assets or dependants, kids or pets, needs a will. To be legally binding in Canada, the will and power of attorney documents must be printed and stored offline and signed in the presence of two witnesses who must also sign the documents. Witnesses cannot be someone who benefits from your will.
Kotzer has pivoted his business to adhere to social distancing measures. “Many are fearful due to COVID of having to go into a lawyer’s office or using an elevator in an office tower.” To give clients peace of mind, he takes instruction from the client over the phone, goes over the draft carefully in a second phone meeting, and hosts the final signing on the large porch of his century home.
Will creation remains a paper-based process and, according to Bury, COVID has accelerated legal change by highlighting the difficulty of printing a document and getting together with witnesses.
“Estate planning can go a long way in keeping family harmony”
“Several provinces including BC, Alberta, and Ontario are allowing virtual witnessing of wills due to COVID, and BC passed a bill that will allow for electronic signing and storing of wills when it comes into effect,” said Bury. She believes that this is necessary modernization of a process that has not kept up with the pace of technology.
Digital signatures on wills are not legal anywhere in Canada. The only type of will that doesn’t require witnesses is a holograph (handwritten) will – it only needs to be signed by the testator (the person making the will), she said.
Estate planning can go a long way in keeping family harmony, stressed Kotzer. But it’s not just neglecting to make a will that leaves problems; an existing will can also leave problems if it is outdated. “Wills should be reviewed on an ongoing basis.”
- When is the last time you reviewed your will? If it is an old will, is the executor you appointed still able to act for you? If he or she is able to act, do you still want him/her to be your executor? Are you still close with each other?
- Was your will made when your kids were young and you appointed your older sister to be executor and trustee to look after the money for your children? Maybe it is time to think about appointing one or more of your now-adult children to be executors instead of your older sister who is not in good health.
- If you are appointing three of your children as executors, consider inserting a majority rule provision in your will so that two out of three of your children can make a binding estate decision, otherwise, there could be a deadlock if all three need to make unanimous decisions.
- Have you married or remarried since you made your will? Be aware that in jurisdictions like Ontario, generally, marriage automatically revokes a will that was made before that marriage.
- Your will should be a living, breathing document that reflects your current life situation. So for example, if your existing will leaves all you own to your three adult children, have you had grandkids since you made that will? Do you now want to leave them a gift of money or a share of your estate to protect their future? If so, you need to update your will.
- Or when you made your will years ago, you had two grandkids at the time and you left them each a sum of money. Have you had more grandkids since then? If so, do you want to leave them the same amount you left the first two that were included in your existing will? If so, you need to update your will.
- Remember that a will only takes effect when you pass away. Your executor cannot act for you while you are alive. But what if you are unable to act for yourself due to an accident or illness? You need to consider making a continuing power of attorney for property and a power of attorney for health and personal care so that someone you trust can act for you when you cannot act for yourself due to an accident or illness.