A Will is a legal document that appoints an executor to distribute your assets after your death in accordance with your stated wishes. The Will can also appoint guardians to care for your minor children and can set out your funeral or cremation wishes.
The laws in each province contain very stringent signing and witnessing requirements for Wills. With the COVID-19 situation, new rules have been enacted with potentially more to come, to make accommodations during the pandemic to ensure safety during execution. We do understand every client’s situation will be different. Our lawyers are well-informed on the new rules and will advise you as to the best way for you to sign your Will safely and ensure that your wishes will be carried out.
The Power of Attorney ("POA") appoints a person, who can be a family member or a professional, to act as your agent on your direct instructions while you are able or to act as your trustee in your best interest in the event of your mental incapacity, respecting your financial and legal matters during your lifetime. This is an important document that everyone should make, regardless of age and health condition, to ensure that there is a trusted person who can take care of your finances and provide for you and your family members, employees or others who are dependent upon you, if you are not able to do so.While in regular circumstances, a POA would be signed either before a lawyer or a notary, we are able to assist you in the preparation of a POA and advise on the best way for you to execute the POA safely in your specific circumstances without an in-person meeting.
A Trust is a vehicle created by a document and other steps. A Trust can hold assets during a person’s lifetime and also distribute what remains following a person’s death. The person appointed as Trustee would deal with the Trust assets in accordance with the terms of the Trust document. The Trust is often used in place of a Will where people want to avoid probate fees or litigation against their estate, including challenges to their Will, or where there is a wish for privacy. It is not a requirement for a Trust to be signed in front of a lawyer but if you are considering setting up a Trust, it is important to consult a lawyer with expertise in Trust law. A lawyer can help ensure that a Trust is appropriate for your specific circumstances, is validly set up (safely), and will not be subject to challenge or trigger any adverse tax consequences.
If you would like to create or update your personal planning documents, discuss the necessity of planning by family members or take advantage of planning opportunities, please contact one of Petle Law's estate and trust lawyers.
COVID-19 has made it clear that taking personal protective measures is critical. We can advise and guide you through the planning process and safely help you prepare and implement proper planning that is appropriate for your own personal circumstances and wishes.
If you own property of any kind, you need a “Last Will and Testament” (also known more simply as a “Will”) to set out your wishes with respect to how your property should be distributed when you pass away. A Will is a key to ensuring your wishes are carried out in the way that you originally intended.
What is the difference between a testamentary trust and a living trust?
A testamentary trust is a trust created by the grantor’s will after they pass away, whereas a living trust is one created by the grantor during their lifetime.
Does a Last Will and Testament need to be notarized?
A Last Will and Testament does not need to be notarized in order to be valid, but it must be signed by the person who created the will (testator or testatrix) as well as witnesses.
What is probate?
Probate is the judicial process by which a will is proved in a court of law and validated as a document that is the true last testament of a deceased individual.
What happens to real estate without a Will?
Without a Will, your estate may be in limbo upon your death until either the government or a person (not necessarily someone you would choose) is appointed as estate trustee to look after your assets. This may result in delays, further expenses, and/or other complications.
Furthermore, without a Will clearly stating who you want your beneficiaries to be and what they are entitled to, Ontario’s Succession Law Reform Act sets out a default scheme for who the estate will be distributed to as well as the percentage/monetary allocations.
Now more than ever, it is imperative to ensure that estate planning documents are up to date. We recommend that lawyers reach out to clients respectfully and suggest that they might use this time at home as an opportunity to perform an assessment of their assets, debts and intentions to ensure that their documents are organized and up to date and that the people they care for are taken care of.It is perhaps even more important to have up-to-date powers of attorney for property and personal care in place, especially for those who are part of the high risk demographic vulnerable to adverse outcomes from being infected with COVID-19, such as being over age 60, immunocompromised, or having pre-existing conditions such as heart disease, diabetes, or lung disease.
For clients who are part of a high-risk group, or are in self-isolation or quarantine, it may become near impossible to manage their day-to-day finances and banking. This may be especially true for some older individuals who are not used to using internet banking or other remote means to manage their finances. A lawyer may suggest that they consider appointing a trusted person who is not in this high-risk group as their attorney for property, or provide recommendations for trusted computer advisors to assist them in accessing their banking documents.
For those who have existing powers of attorney for property in place, it may be necessary for them to now trigger their use. Lawyers should reach out to see if clients require any assistance with their bank to ensure that the powers of attorney are accepted and provide clients with notarial copies.
A Power of Attorney (also known more simply as a “POA”) is a legal document that gives someone else (ie. an “Attorney”) the right to act on your behalf and make certain decisions for you. You can include your spouse or relative, trusted friend or professional (i.e. a lawyer or accountant), or any capable adult as your attorney. After signing a Power of Attorney, your attorney will be able to:
Your attorney is legally obligated to act only in your interest and limits for their actions can be written in the POA. You can also have multiple attorneys listed in the POA. It is important to consider any conflicts between their actions given that they share access to your bank account and or other assets.
If you are going to be out of town or in a different country for an indefinite period of time, you may need someone to act as your Attorney on a real estate transaction or other financial/property matters and sign documents on your behalf.
If you are deemed to be incapable (i.e. unable to make decisions or to understand the consequences of said decisions), an attorney can act on your behalf and make decisions in your best interests. Examples of this include being in a coma, unconscious, or experiencing mental deficiencies due to old age or a health problem.
What Are the Different Types of POAs in Ontario?
There are generally two different types of POAs:
At Seif Law Firm, we give you the option of making a POA for either a property/financial matters or personal care, and we also give you the option of making a single general POA that incorporates both of these types of POA in the same legal document.
Our lawyers specialize in all kinds of P.O.A.s, including ordinary and enduring (continuing), financial and general POAs.
In order to sign a POA, one must be capable. If you wait until issues of incapacity and/or health problems develop that prevent you from signing a POA, it will be a very costly and time-consuming process to install a substitute decision-maker (such as a court-appointed Guardian of Property or Guardian of the Person). Also, it may cause additional stress and hardship for your loved ones as they try to help you navigate your property/financial matters and personal care decisions while you are incapable.
What is the difference between a POA and a will?
While a Will applies after your death (and explains your wishes with respect to distributing the assets of your estate), a POA applies while you are still alive but are either unavailable or incapable as described above.
What happens if you don’t have a Power of Attorney?
Your family may be forced to petition a court to be appointed as your legal guardian or conservator in order to gain the authority they need to care for you.
Do spouses automatically have power of attorney?
In Ontario, your spouse does not automatically have power of attorney over property that is solely registered under your name.
Who can override power of attorney?
As long as the principal (the person granting the power of attorney) is mentally competent and able to communicate, they are the only entity that can revoke a power of attorney. If they are no longer able to communicate, however, the power of attorney can be challenged by a third party.
How much does it cost to get a power of attorney in Ontario?
The legal fees of a power of attorney in Ontario are usually calculated based on the document you want to authorize to a lawyer. The price can range anywhere from $100 to $300 per document. Contact us directly for more details.
Wills must be signed by a testator in the presence of two witnesses who are not beneficiaries of the will. Powers of attorney must be signed by the grantor in the presence of two witnesses. Neither witness can be the attorney named or his/her spouse or partner, the spouse, partner, or child of the grantor of the power nor someone they treat as a child, a person who is under guardianship or who has a guardian of property, or a person under 18 years of age. If these strict requirements are not followed, the will or power of attorney may be invalid. In addition, one of the witnesses must swear an affidavit of execution in the presence of a commissioner of oaths. This document forms part of the probate application to the court and should be done right after the signing.
The will can be sent to the testator and the witnesses to be printed out, along with a list of detailed execution instructions to be reviewed by them beforehand. If the parties do not have printing capabilities in their respective homes, the lawyer can courier printed copies to their homes. The lawyer can then use Zoom or other high definition videoconferencing applications to video conference into the meeting, explain the provisions of the documents and oversee the meeting to ensure that the signing is done correctly. When watching the signing virtually, the lawyer must be sure the documents being signed are the ones that the lawyer prepared. If possible, the lawyer should ensure that he or she can see what is being signed to confirm no changes have been made.
The lawyer should also ensure that the testator/grantor of the power understands and appreciates the contents of the documents, that the documents reflect their wishes, is under no undue influence and that there are no suspicious circumstances surrounding the completion of these documents. It is important to ensure that these documents reflect the client’s wishes. It is at times like these that lawyers must be even more vigilant in taking instructions from clients, especially if they are unwell, to ensure they are providing instructions without the influence of others. It may also be prudent to take an electronic recording of the entire signing for the file.
As noted above, our legislation has always required that two witnesses to the signing of the will be physically present with the testator. However, on April 7, 2020, an emergency order was made under the Emergency Management and Civil Protection Act to permit the virtual witnessing of wills and powers of attorney over audio-visual communication technology during Ontario’s state of emergency. If the will is witnessed virtually, one of the witnesses must be a licensee of the Law Society of Ontario at the time of the signing. The order is not retroactive and does not allow e-signatures.
At the time this article was submitted, the emergency order was just made in Ontario. It remains to be seen how wills and powers of attorney can be executed through virtual witnessing and what procedures should be followed to ensure that the documents are witnessed properly. It is unlikely that signing in counterparts is permitted and several issues remain unclear. Are multiple virtual meetings required to observe each witness sign the same original document? Must the witnessing be done at the same time and on the same date, and how should the corresponding affidavits of execution be changed?
In Ontario, if neither witness is a licensee of the Law Society of Ontario or virtual witnessing is not possible, then the testator will need to bring in two individuals that they are comfortable with who are not beneficiaries of the will (perhaps a trusted neighbour or family member who has also been responsibly practicing social distancing) to witness the will in their physical presence. Each party should bring their own pen and stay six feet away from each other. The signing can be done outside with the documents on a garden table, and each person in the yard, six feet away from the table, watching the signing and stepping up to sign as appropriate, again with their own pens.
Finally, one of the witnesses can swear the affidavit of execution remotely in front of a commissioner of oaths. In ordinary times, swearing of affidavits of execution must be done in the physical presence of a commissioner of oaths. However, as a result of COVID-19 and until further notice, the Law Society of Ontario will permit commissioning via video conference. The lawyer must change the jurat to reflect how the document was witnessed. We have also been requesting that the person confirm the contents of the document by email. This statement by the Law Society of Ontario is not a change to the legislation, but does give some comfort.
The shockwave of COVID-19 is making its way through Canada’s economy, depressing the valuations of most businesses. However, like an investor “buying the dip” when the markets crashed and subsequently recovered during previous recessions, a properly timed estate freeze or refreeze can turn the adversity of a significantly depressed economy into a tremendous opportunity for Canadian business owners looking to plan for the future of their families and businesses.
We recommend consulting a professional tax planner to discuss if an estate freeze or refreeze may be beneficial for your business. There are a variety of methods that can be used to implement these reorganizations, with techniques tailored for each individual’s estate and tax plans, to establish the most advantageous position for a rebounding economy.