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 Day 3 of Make-a-Will-Month. Chances are you are, or the person beside you is, will-less. While numbers have changed given a Covid boost and more online options, a survey conducted by Tim Hewson of LegalWills showed 62% of Canadians don't have a will and nearly 12% have an out-of-date one. Out of date could mean anything from a few tweaks are needed to a will so obsolete it's invalid (say, after remarriage or with improper witnessing, unclear language, missing signatures, or improper alterations).
People gave the following reasons for having no will (2023 Angus Reid Poll): 🙈 42%: they’re too young or have too few assets 🙉 24%: it's too expensive or too time-consuming 🙊 10%: don’t want to think about death or discuss details with a stranger 😱 24%: other. In a nutshell, people think wills are complicated, costly, and consume time they just don’t have. The truth is the most basic wills are simple, cheap, take less time, and are less painful than a trip to the dentist. As soon as someone reaches the age of majority, however little they have in assets, they need a will, if only to simplify things for family or others they care about. There are now free or affordable services to quickly create wills online that are much better than the old paper kits and much better than nothing at all. TIP: Complete an online will – if you have a simple situation, it’s quick, cheap, and easy to update. If your situation is more complicated, it provides excellent information that you’ll need and the questions you’ll need to think about before asking a lawyer to prepare a formal will. For how to decide where you fit on the simple-to-complicated spectrum, see https://lnkd.in/gA5qhDNW. If there’s no valid will, among the biggest losers are CHARITIES: intestacy laws don’t recognize them. The biggest winner may be someone the willmaker is estranged from or, if no heirs can be found, the Crown itself. TASKS to help bulletproof a will when it comes to charities? 1️⃣ Make sure any charity is correctly named with information including registration number and contacts. 2️⃣ Check the charity retains its registered status and remains worthy of your money. Just because a charity is big doesn’t make it good, as Charity Intelligence Canada says (https://lnkd.in/geUNyTdf). That’s because each year charitable status is revoked when audits reveal financial mismanagement/non-compliance or repeated failures to file information. Do a little more digging because the CRA Charities Directorate can’t suspend a charity or notify donors of an audit until it makes a final decision (British law allows prominent publication of a charity being under investigation). 3️⃣ Understand that ambiguities regarding charitable intentions may be left to the court to interpret… and other estate beneficiaries may be interested in seeing such gifts challenged. 4️⃣ Provide alternates in case the original gift cannot be completed.  This is the second day of Make-a-Will Month. When someone says some things never die, whoever “they” are can’t have been talking about wills, certainly not in Canada. Wills can, in fact, “die” and this can have deadly outcomes. A horror story as told to me: Once a widow and widower married, looking forward to many happy years together. In love, both were healthy. Updating their wills wasn’t the first priority after embarking on their new life together. Then the fickle fingers of fate snapped just like that. A short while after the wedding, the wife died. What the couple almost certainly didn’t know is that in some Canadian jurisdictions the will a person wrote before marriage is revoked upon marriage. Tying the knot can make existing wills null and void. What this meant in this case was that the wife died intestate – as if she had no will. Her assets, according to intestacy laws, went to her husband. This still could have been OK if he had understood what this meant and changed his will to respect her will’s bequests to her daughters by her first marriage, some charities, a few others. But he didn’t get the chance before he in turn died a few months later. This meant he also died intestate and under intestacy law both his and his second wife’s assets went to his adult children. Even at this point it could have been OK, but the man’s children, not respecting what his likely intentions were, refused to transfer his wife's assets to her daughters and other beneficiaries. In some Canadian jurisdictions, getting married automatically revokes any will written prior to marriage. This means not just someone’s second marriage, but marriage period. Marriage in B.C., Ontario, Saskatchewan, Quebec, and Yukon does not revoke a will; marriage in Alberta, Manitoba, New Brunswick, Newfoundland, Northwest Territories, Nova Scotia, Nunavut, and Prince Edward Island revokes a will “unless it was made in contemplation of marriage” – updating to a post-wedding will before actually being married – or met limited other criteria. Even here, be careful. While this list shows Ontario does not revoke a will, this is limited to marriages occurring on or after January 1, 2022. It’s not retroactive and so doesn’t apply to people already married before that date. Unless they have an existing will made in contemplation of marriage or wrote a will after that date, they’ll be considered not to have a will and intestacy law will apply even if they still stand by their wishes as expressed in an otherwise duly executed will. Also, a few words can make all the difference, explains estate litigator Trevor Todd (https://lnkd.in/gJCVFVPv). TODAY’S NUDGE: if you know of someone getting married (or if, in Ontario, they were married before 2022), make sure they are aware of what the law where they live says about former wills. TODAY’S ENTREATY: Officiants and other marriage celebrants, please bring this information to the attention of those you are joining in matrimony before it’s too late. Today’s image? Charles Dickens, author of the poem about some things that never die https://lnkd.in/geyMaqZf).  It’s just a hop, skip, and jump from Halloween on Oct. 31st to November – Make a Will Month. This headline of the inimitable Margaret Atwood gave me the leap I needed for the first of 30 related posts. Each day will provide a nudge, a tip, a task, or an entreaty.
We all will leave a legacy and it’s up to each of us to decide what that will be. Margaret’s legacy includes 18 novels, 18 poetry volumes, 11 non-fiction books, 9 works of short fiction, and 2 graphic novels. She’s got two Booker Prizes, The Arthur C. Clarke Award, The Governor General's Award, The Prince of Asturias Award for Literature, and (particularly appropriate) The Franz Kafka Prize. She invented the LongPen among other things. She founded the Griffin Poetry Prize, co-founded the Writers' Trust of Canada, was the first contributor to the Future Library Project, and took on two heavyweights. She’s the caped defender of truth, justice, and the Canadian way. From interviews with Margaret Atwood, I’d guess she’d pooh-poohingly make light of her own death and legacy, though these topics are interwoven in many of her works. But I presumptuously believe she has a will to be read at her death and plans for what to do with her estate. I’ll go out on a limb and say she’s had great pleasure in naming beneficiaries and causes, and in rewriting her will with bon mots and barbs a-plenty (get her latest – Book of Lives: A Memoir of Sorts on sale November 4). TODAY’S NUDGE, which has a Hallowe’en-horror feel: On January 15, 2022, a person died of COVID-19 complications. Instead of being buried soon after as he wanted beside his father in a family-owned plot, and despite repeated directions and a court order directing that he be buried there, the deceased’s family and Bereavement Authority of Ontario (BAO) remained in a fierce legal battle with the cemetery's owner, September 21 Inc. There’d been an administrative problem in 2019, apparently involving the church where the cemetery was located, but the deceased’s family had a valid deed of sale from the previous owner. The deceased was finally buried on October 1, 2022 – 9.5 months after his death. Not content with that, September 21 Inc. continued a counter court case heard, which it lost on May 5, 2023 (the deceased’s family was awarded costs but unlikely sufficient for the hell they’d been put through). TODAY’S TIP: A will is just one part of a package of paperwork people need as much for those they leave behind as for themselves. TODAY’S TASKS:
 Willmakers beware. Say you’ve given a daughter a legal-form power of attorney. They think you’re declining physically and mentally after the death of your much-loved spouse. What do you think they’d do? Move you up the list for a
space in a facility? Think that an easy-to-manage one-bedroom unit, after you’ve lived your life in a house, would be in your best interests? Take you to the bank for a bank PoA to make things easier to manage? Let them cash in your investments to support you? These are, of course, trick questions, because it all depends. Listen to this cautionary interview with Kerry Cathers about PoA pitfalls. Although a sad tale, it has a happier ending and practical recommendations. It could be the most worthwhile 22 minutes you spend this week.  Welcome to the latest issue of To Heir Is Human, the newsletter highlighting tips from my book, as well as new developments in preparing for and managing estates. BIG NEWS for those who love libraries (and – let’s face it – they’re air-conditioned!), or want to see the book before you die (oops) buy, it’s now in the Toronto Public Library (14 copies and 30 holds!) – reserve a copy now.
For willmakers we have “KAPOW! Or KAPOA?” about the risks of naming powers of attorney with tips to help you manage. For executors, we have “Two for one:” what to think about if you own property in more than one jurisdiction (the proverbial family cottage - also known as heaven or hell depending on your family). For heirs and beneficiaries, we have “Widows and orphans” – many Canadians new to this country may follow traditional habits and many may have property “back home.” Wherever you are or are from, traditions, religion, and other cultural factors may impede discussions of PoAs and wills or, following a death, result in actions incompatible with Canadian law, in both cases with possible unfortunate outcomes. We conclude with the usual Things that matter, all about some crazy people's efforts to improve the tortuous twists and turns of estate management and the related administration.  And now for a complete change of pace… Losing a parent is hard; watching the effect of the death on the surviving widow or widower can be equally heart-breaking for a child of any age. My friend Kerry has been helping her dad come to terms with his life after his wife died following 70 years of marriage. In this recording, she describes an unexpected bright spot (https://lnkd.in/gbNKGsWS) in darker times that made me rethink some of my own preconceptions and reminded me of my mixed emotions when I had some of the best discussions of my life with my mum only very late in her life. The recording also reminds us that we mustn’t lose sight – even as we plan administratively for the inevitable – of what’s most important: taking small pleasures in the continuing opportunity for human connection.
K.K. Cathers (PhD) is the Toronto author of A Writer’s Guide to Nineteenth-Century Murder by Arsenic, a book that helps put the poison into the pen of writers of historical crime fiction. She describes her website, A Curiosity of Crime, as one for the “criminally curious.” Her first book was (and ones in the works are) for those who want to learn more about forensics and law enforcement between 1800 and 1940. She has three degrees in history, two of which also are in medieval warfare (?!).Claims to fame beyond her work as freelance writer and editor in the publishing and business world include pulling pints while a student, acting as an extra in Cate Blanchett’s Elizabeth, and overseeing the licensing of slaughterers in Great Britain.
If people are unprepared, the well-being of not just people affected today, but also those in the future, will suffer. This is not just an old-folks issue – it spans all ages. Baby boomers currently make up nearly a quarter of all Canadians. With baby boomer deaths increasing, the process to transfer wealth – in excess of $1 trillion this decade – between generations is messy and getting messier because it’s occurring in an increasingly complex legal, tax, and financial environment ill-prepared to cope with the onslaught of work despite government efforts to streamline. For example, some professionals estimate that the time needed to probate a will in the Greater Toronto Area has now more than doubled to 8-9 months; the time for tax authorities to issue tax clearance certificates now exceeds a year as compared to the CRA's goal of 6 months). This means many people will have to pay probate fees and taxes well before estate proceeds are available to pay them.
After speaking to several people on a mission to help Canadians prepare for the inevitable end of life, we decided to do something about it. We picked five issues we think can be addressed with little or no legislative change or cost, and that will materially help make things as easy as possible for families and their executors preparing for and coping with the death of a family member. The five are:
For more detail on the things we think need to be addressed, please read our letter to the Ontario government (use Chrome or Edge to access this if you can't open this link). And how about you? Have you come up against blocks as you try to move forward to prepare for or settle an estate? Please let us know by emailing [email protected] because these five are just the beginning. #executor #estate #probate #taxes #wills
In this vein, John shared a great (if not for the beneficiaries) story - if you were wondering, here's where Nortel comes in.
When a person dies, the value of all RRIF assets is deemed to immediately be taken into the deceased's income at fair market value as at the date of their death and taxed. For those too young to recall Nortel's collapse, share prices went from a high of $124.50 in mid-2000 to just 39 cents before the company filed for bankruptcy in early 2009. In John's example, a person who ignored warnings not to put too many eggs in an undiversified basket paid $1 million for Nortel securities in the early 2000s (say 10,000 shares at $100 each) and held them - 80% or so of his portfolio - until his death, expecting that the sale of the securities by the executor would cover taxes due when the time came. Instead of a big inheritance, the deceased would have left beneficiaries with a big shock: a BIG tax bill and little to pay it with. Here's how:
Executors, of course, are not responsible for market moves, a willmaker's poor investment decisions, or a company's bankruptcy, but executors are responsible for safeguarding assets, that is, trying to maintain or protect market value. If the willmaker had died when the shares had declined in value to $500,000, a financial or tax advisor could have recommended selling the shares to at least recover enough to pay the tax due. Executors should get financial advice to minimize their liability and avoid beneficiary charges that they did not take logical steps to try to mitigate losses.
 ‘Ah,’ said the cobbler, ‘... What do you supposed ruined me, now?’
‘Wy,’ said Sam ... ‘I s’pose the beginnin’ wos, that you got into debt, eh?’ ‘Never owed a farden [farthing],’ said the cobbler, ‘try again.’ ‘Well perhaps,’ said Sam, you bought houses, which is delicate English for going mad, or took the buildin’, which is a medical term for being incurable.’ The cobbler shook his head and said, ‘Try again.’ ‘You didn’t go to law, I hope?’ said Sam suspiciously. ‘Never in my life,’ replied the cobbler. ‘The fact is, I was ruined by having money left me.’
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