When it comes to estate planning, a little glimpse of your own mortality can be a powerful thing.
For many people, a driving near-miss or a health scare can be the spur they need to finally make the call to a wills and estates lawyer who can help them get their affairs in order.
For others, that jolt to action may never arrive at all. Or it could come too late, as a recent Ontario Superior Court case demonstrates.
The 69-year-old man at the heart of the case went looking for a lawyer to draft his will after he was hospitalized with kidney stones, where doctors uncovered some other unrelated health issues.
However, just when he thought he was out of the woods, the man died suddenly from a heart attack. This was days after he had met with his lawyer about a will, but crucially for the court case, several weeks before they were due to meet again to confirm and execute the documents that had been drawn up based on the earlier meeting.
According to the drafting lawyer’s notes, the testator – a single man with no children – wanted to make a series of significant bequests to nephews, friends and charities, with anything left from his $1.25 million in assets going to his former employer, who was also due to be appointed as executor.
Following the man’s death, the proposed executor asked the court to enact the unsigned draft will based on provisions in Ontario’s Succession Law Reform Act, which allow judges to validate wills that would otherwise have been declared void due to technical errors.
However, the judge was not convinced that the document was a “deliberate or fixed and final expression” of the testator’s intentions. Noting that the man had never actually reviewed the lawyer’s draft will, as well as evidence of another handwritten note with apparently inconsistent instructions found in the testator’s belongings, the judge dismissed the executor’s application.
Without a valid will in place, a deceased person misses the opportunity to distribute their assets as they wish. Instead, provincial legislation dictates who gets what via the strict rules set out in the SLRA.
In this case, that means that all of the man’s assets will pass to his nearest relatives: several estranged siblings who were not mentioned at all in his draft will.
If you’re reading this post and you don’t have a will, take this cautionary tale as your sign. Get one drafted before it’s too late.
Disclaimer: The content on this website is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this website are advised to seek specific legal advice by contacting members of Laredo Law (or their own legal counsel) regarding any specific legal issues.
