The importance of disclosing to your Wills and Estates Lawyer
At the commencement of drafting the client’s Last Will and Testament, I am often asked, “Do I really need to provide you with all this information? I just want a simple Will.”
In truth, there is no simple Will; and it remains just as important to fully disclose your assets and liabilities when preparing a “simple” Will than it is with more complex estate planning.
At RV Law, we use our Will Intake Form as a guide to collect the necessary information from clients for the reasons set out below.
1.The manner in which real property is held and registered with the Land Registry Office is extremely important to confirm. Some types of joint ownership will remove assets out of the client’s estate altogether. This can be a big problem if it is not what the client understands or intends.
2. The value of property is relevant for assessing an estate’s exposure to income tax and estate administration tax (formerly probate). The client might benefit from being afforded options on how to minimize estate administration tax:
- Setting up an alter ego trust;
- Disposing of property during the client’s lifetime;
- Transferring property to joint ownership;
- Ensuring life insurance policies and registered investments designate a beneficiary or beneficiaries; and/or
- Executing multiple Wills, particularly in the event the client owns shares in the family business or a private corporation.
3. The nature and location of assets in other jurisdictions may restrict or pose obstacles to dealing with the client’s assets. In assuaging such concerns, the client may be recommended to retain a lawyer in that foreign jurisdiction. Alternatively, and when circumstances permit, it may be worthwhile to have the Will conform to the Convention Providing a Uniform Law on the Form of an International Will which extends the respecting of Wills in foreign jurisdictions.
4. Knowledge of the relationship between the testator and the executor and estate trustee can be critical. For instance, a proposed estate trustee may be legally bound from dealing with the assets by contract (Shareholder Agreement, Co-Tenancy Agreement). The city of residence of the purported estates trustee is also of significance as legislation maintains that a Certificate of Appointment of Estate Trustee (formerly Letters Probate) shall not be issued to a person who is non-resident of Ontario. While there are ways get around this, it is important for the client be fully informed before making an appointment.
5. The client’s day-to-day life might incite a discussion surrounding a potential claim for dependant support against the client’s estate. The client might also have a Marriage Contract, Cohabitation Agreement or Separation Agreement in place that requires the client’s Will to be drafted in accordance with same. The client may have a child who receives income support through ODSP and thus the client’s family may benefit from a Henson trust.
6. By providing the foregoing information and documents, the client also helps support affirmative conclusions surrounding the client’s testamentary capacity and the absence undue influence or duress. Such conclusions are undoubtedly of assistance in the event the client’s Will is later challenged.
Ultimately, failing to provide your lawyer with an accurate picture of your personal and financial circumstances could very well result in your Will not being upheld and your final wishes not being carried out.