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Avoid These Dangerous Wills to Protect Your Family: Tips from a Wills and Estates Lawyer

Toronto’s Picov & Kleinberg Barristers & Solicitors provide wills and estates planning services to clients who want to ensure that their assets are distributed to their loved ones in accordance with their wishes. A well-drafted will gives you not just peace of mind that your wishes have been correctly stated and that they will be able to be carried out – it can also save your family from problems and expenses (for example, by using strategies to avoid probate fees or minimize taxes triggered by your death). A poorly drafted will can tear a family apart and may ultimately be invalid. Lawyers at our firm prepared this list of dangerous wills to be aware of to avoid mistakes in estate planning. Of course, the best way to ensure that you have an effective, comprehensive will is to seek the assistance of an experienced Toronto will and estate lawyer.

Lawyers in Toronto Discuss Dangerous Wills and the Problems They Can Cause

Here is a list of common dangerous wills and the problems they may cause for your loved ones on your death:

  • Mirror wills – these types of wills are usually used by spouses and contain parallel provisions (for example, each spouse’s wills states that on the death of the first spouse the estate would go to the other, then to the children of the spouses). Many do not realize that the surviving spouse is entitled to change their will after the first spouse dies. What happens if the surviving spouse remarries, has more children, or becomes a stepparent to their new partner’s children?
     
  • Mutual wills – these are similar to mirror wills, but also contain an agreement that upon the first spouse's death, the surviving spouse is not entitled to revoke or change their will except as agreed. Mutual wills can be legally binding and the promises in them can be enforceable if they are very carefully drafted by an experienced lawyer. However, even cautiously drafted mutual wills can be contentious. If there is an agreement to be bound and the surviving spouse changes their will, it will be necessary for disappointed beneficiaries to apply to the courts to intervene to ensure that the survivor keeps their promise.
     
  • “Joint” wills – a will that starts with the word “We …” or that contains the word “we” in the dispositive provisions of the will is problematic. Joint wills are not legal in Ontario. Each person needs his or her own will to dispose of assets, set out their wishes for guardianship and care of minor children, etc.
     
  • Handwritten wills (also known as “holograph wills”) – in Ontario, a will that is written entirely in the deceased’s person's handwriting and that contains the deceased signature can be valid, even if signed without witnesses being present. Seems easy and cheap, right? It may not be so cheap in the long run. Handwritten wills require court approval and it may be necessary for the court to intervene to interpret what you wrote and clarify any ambiguities. That process is expensive and time-consuming. Handwritten wills are also problematic as they typically fail to address all assets or requirements to distribute the estate (for example, by failing to deal with the residue of the estate, or by failing to appoint an executor). You should also be aware that handwritten wills are not accepted as valid wills in some provinces outside of Ontario or in other countries.
     
  • Wills prepared using a will kit” – “do it yourself” will kits are rife with problems. They are often too simplistic and do not contain enough explanations to ensure that they are being used properly. How can a preprinted form cover all of your needs and your unique circumstances? How can you be sure that it says what you mean so that it operates in the way that you intended on your death? Another major problem with a fill in the blank will is that it is not wholly in the maker’s own handwriting, so it does not meet the requirements of a holographic will. That means that if a DIY will is not properly witnessed, it is not a validly attested will.
     
  • “Living wills” – a living will is a document that contains your wishes about future medical treatment should you become incapable of providing instructions at a later date due to illness, injury, or old age. Don’t let the name mislead you – a living will is not a will. A will takes effect when you die and deals with your assets and the custody of your minor children, etc., whereas a living will is only effective while you are alive and only deals with your health care instructions. It is also worth noting that a living is not the same as a Power of Attorney for Personal Care. A Power of Attorney for Personal Care is a document in which you name a specific person to make personal care decisions on your behalf. Call our lawyers in Toronto today for more information about powers of attorney.
     

Our Experienced Wills and Estates Lawyers in Toronto Are Here to Guide You

The primary goal of estate planning is to ensure your intentions for your loved ones are carried out, but there are many other goals such as minimizing estate taxes and probate fees, avoiding wills challenges, and maintaining control over assets by setting up trusts (for example, for minor children). Our experienced Toronto wills and estate lawyers have been providing trusted advice and clear strategies to clients in the GTA since 1978. Contact us today at 416-488-2100 or by email to kpicov@picovkleinberg.com to arrange for a free 30-minute consultation to discuss your estate planning goals and how we can help you achieve them.

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