Estates & Wills & Trusts

Top three reasons to make a will: Derfel

By AdvocateDaily.com Staff

Few people like to confront their own mortality, but Toronto trusts and estates lawyer David Derfel says the momentary discomfort of drafting a will is worth it in the long run.

For those still on the fence, Derfel, founder and principal of Derfel Law, has put together his list of the top three reasons why everyone should make a will.

1. Nobody knows their date of death

“Anything can happen to anyone at any time,” says Derfel, who gets plenty of reminders about the fragility of life from his work in the field of personal injury law.

Younger people often dismiss estate planning as something for their parents to worry about, but “nobody should assume they have the time to do it, because it may be too late,” he adds.

2. Make your own decisions

When a person dies without a will in Ontario, their assets are distributed according to strict rules set out in the Succession Law Reform Act (SLRA).

According to the law, any surviving spouse gets the first $200,000 from the estate, with the remainder divided between the spouse and the deceased’s surviving children.

However, Derfel tells AdvocateDaily.com that the SLRA does not take into account the individual circumstances of the deceased, which can lead to problems, especially if the person has anything but a conventional family arrangement.

“You don’t want someone else making decisions for you,” he says. “By making a will, you can set out precise instructions about who gets what.”

For those with significant assets going to younger children, Derfel says they may also wish to establish testamentary trusts to ensure they are not overwhelmed by sudden wealth.

“You may not want your 20-year-old child inheriting your $5-million property,” he explains. “You need to make decisions about how to protect the asset and the child.”

3. Avoid conflict

Despite the SLRA’s rules on intestacy, Derfel says a deceased’s potential beneficiaries are much more likely to fight over assets without there being a clear expression of testamentary intent.

“If you make a will at the appropriate time, and there’s no evidence of undue influence, it’s quite easy to avoid creating a conflict for your beneficiaries, and all the stress that entails,” he says. “The burdens shouldn’t be put on your family members to engage in litigation to decide issues that you could have settled yourself in a will.”

Even worse, in many cases, estate litigation may be paid for out the assets left behind by the testator, Derfel says.

“You don’t want the money that you worked hard for your entire life to be depleted because you never left a will,” he says.

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