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Estates & Wills & Trusts

Wills must not be viewed as commodities

The emergence of new online technology and law firm models based in a retail setting has sparked conversations over the value the public places on wills and their necessity, says Toronto estate lawyer Mary Wahbi.

“This is one of the most important things someone is going to do in their life,” she says of creating a will. “It’s not a minor issue – it’s huge and its implications are enormous.”

Do-it-yourself online wills are becoming more popular, says Wahbi, and new retail practice models have focused more on offering accessible, affordable services.

While making lawyers more accessible and more affordable is a positive goal, those seeking a will must remember not to treat the document as a commodity, says Wahbi, partner with Fogler Rubinoff LLP.

“It’s not the same as buying shoes or a shirt, nor is it just about quickly and inexpensively producing a document. Estate planning is a process in which assets, family circumstances, legal obligations, moral obligations, and tax repercussions, among a number of other issues, are taken into account. The process will ultimately result in a will, but one size does not fit all," she says.

"Careful assessment is required to ensure that the will is unambiguous, properly deals with dependents, provides for appropriate executors, and deals with beneficiaries in a sensible manner so that it does what was intended and is not the subject of court proceedings after death. It is an important process that should not be taken lightly and requires qualified legal assistance in its preparation."

Wahbi says, “If someone creates their will online or uses a pre-printed form, they’re filling in blanks and answering questions with no knowledge of the law and what pitfalls to avoid in the decisions they’re making," which can be very dangerous and may have unintended results.

“It can be a recipe for disaster down the road. A will can’t be changed after death to properly reflect the testator's intentions and the only available solution, which may not necessarily work to everyone's satisfaction, is a court application to sort out the mess," she says. "A will that is prepared without careful thought and planning, taking into account all of the necessary issues, will leave the family dealing with unhappy results or worse, litigation, which will cost the estate much more money and often results in irreconcilable family discord.”

The issues to be considered when preparing an estate plan are, says Wahbi:

– Detailed information on all assets, including those that flow outside of a will, such as life insurance, RRSPs, TFSAs, and pensions, so that the overall estate plan and will takes this into account;
– Details regarding the manner of ownership of such assets (joint, with others, in trust, etc.) so that this can be changed, if appropriate, or properly reflected in the will;
– Information about the family’s circumstances, including beneficiaries who are minors, non-resident beneficiaries, and obligations to dependents; and
– Information about asset location, citizenship of the testator,  income tax considerations, and “probate fee” planning.

"Part of estate planning is to ensure that the estate is managed properly, assets flow appropriately after death and that taxes are minimized," says Wahbi. "In addition, Powers of Attorney for Property and for Personal Care are often part of the discussion and part of the package of documentation produced at the end of the process. Considerations of what is to happen should a person becomes incapable of handling their own finances or incapable of making personal care decisions, including instructions on end-of-life decisions, are an important part of the process."

Some might argue, says Wahbi, that these POA documents can have more impact and be even more important than those detailing what is to happen after death.

“The process of gathering information and analyzing it is very important and requires legal training for appropriate consideration,” says Wahbi.

“I think the perception is that creating a will is simple and straightforward and is amenable to being mass produced at discounted rates, but in fact, every person is unique in their asset holdings and family circumstances. Our lives have become more complex and very few people have simple circumstances that do not require personal detailed consideration," says Wahbi.

"We have complicated assets and complicated families – separations, divorces, blended marriages, stepchildren, relatives with special needs or receiving ODSP, elderly parents, and charities we care about. People’s lives are not simple and the process of estate planning needs to take that into account and result in a workable and meaningful product.”

To Read More Mary Wahbi Posts Click Here
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