Canadians with vacation plans should add an extra item to their pre-travel checklist: update your will.
Every winter, millions of Canadians head south to escape the winter weather – some for months at a time. Few would give a second thought before purchasing travel insurance to protect themselves should the worst happen, but a recent Ontario Superior Court case demonstrates the value of ensuring your estate plan is also in order before departure.
The 72-year-old Kingston, Ont. man at the heart of the matter had actually almost finished the job, hiring a lawyer and providing instructions on what he wanted to go into his will before embarking on travel plans with his common-law spouse.
However, he had not yet signed the final document before boarding a plane for Myrtle Beach in South Carolina in March 2019. Tragically, just three days into his vacation, he suffered a stroke, a heart attack and a seizure that required two surgeries in the U.S. before he was stable enough to fly home.
By April 2019, the man was back at the Kingston General Hospital to continue his care, but he was never able to leave before his death in June of that year.
The case ended up in court when the man’s son challenged the will on the basis that his father lacked capacity to sign it on the date it was allegedly executed, which fell during his hospital stay in Kingston, between his return from the U.S. and his eventual death.
After reviewing evidence from a medical expert and hospital records that suggested the man was paralyzed on the date of the will’s alleged execution, the judge sided with the son and declared the will invalid, concluding that the signature on the document did not belong to the testator.
It’s not clear whether the decision will result in an intestacy or if the deceased had an earlier valid will that can now kick in to guide the administration of his estate.
If there are no valid wills, the deceased will have missed his opportunity to distribute his assets as he wished. Instead, provincial legislation dictates who gets what via the strict rules set out in Ontario’s Succession Law Reform Act.
What is more certain is that the delay and expense associated with this kind of litigation could likely have been avoided, or at least minimized, had the man managed to execute his will before leaving the country for the final time.
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