A complete estate plan includes protective measures for when you are still alive, but are not able to manage your own affairs.
A person with mental capacity may appoint one or more attorneys for property to act if, due to accident or illness, the person later comes to lack mental capacity to manage his or her own property.
Choice of the attorney is critical. An attorney can do anything with your property that you can do, except make a Will. You must have complete trust in the attorney and his or her ability to manage your property and financial affairs. The attorney can hire investment, tax or legal advisors. It may be useful to appoint more than one attorney, either to act jointly, or jointly and severally. “Jointly” means all must act together; “jointly and severally” means all may act together or independently. As in the case of estate trustees, it may be useful to provide for an alternate attorney in case one of the appointed attorneys is unable or unwilling to act.
My previous post in this series discussed the first major issue in preparing your Will: the selection of Estate Trustees. Today’s post discusses the second major question: to whom should your assets or property be given?
Gifts, bequests or legacies can be to any number of persons or organizations, including charities. Recipients are referred to as beneficiaries.
The beneficiaries can be anyone you choose. Many couples choose to provide that all of their assets will be given to the surviving spouse and that on the death of the surviving spouse, all the remaining assets be given to family members. Care should be taken to ensure that the bequests reflect family circumstances and the needs of children. For example, if a child is married, you may wish to provide that the bequest is not to form part of the property to which the child’s spouse can get access in the event of separation or divorce. If a child has children, you may wish to provide that the children take the share of the parent should the parent die. Unless your Will provides otherwise, a gift to a child, grandchild or sibling who predeceases you will be distributed among the beneficiary’s surviving spouse and children as though the beneficiary died intestate. Distribution of property on an intestacy will be discussed in the next blog in this series. Read the rest of this entry »
The Ontario Court of Appeal has clarified an issue relating to severing joint tenancy that is noteworthy for many joint property owners, lawyers and judges. This decision will impact several areas of law, including family law, real estate and wills and estates.
Rule 3 is one of three ways to sever joint tenancy for joint property owners. It severs joint tenancy by “any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common”. Rule 3 typically governs cases where there is not an explicit agreement between joint owners, a situation that arises often after a separation.
The Court of Appeal explained that “in the context of negotiations between spouses who are in the midst of a marriage breakdown, even failed or uncompleted negotiations can lead to a severance because the ‘negotiations of shares and separate interests represents and attitude that shows that the notional unity of ownership under joint tenancy has been abandoned’”. Read the rest of this entry »
After a separation, often one parent may want to move to a new location, whether it is to change jobs, for a new partner, or to return to a hometown. Regardless of the reason, every member of the family is potentially impacted by the move.
Ontario does not have any legislation that addresses this issue. This leaves Ontario courts and lawyers advising families to look to the Supreme Court of Canada case, Gorden v. Goertz, for answers. Gorden v. Goertz offers very general guidance, which includes considering the “best interests of the child”.
It would be very helpful for courts, lawyers and families to have clearer guidelines on the relocation of children after a separation. However, the Supreme Court of Canada has not allowed any appeals on this issue in quite some time. In addition, it does not appear that government is planning to address this issue in legislation. Read the rest of this entry »
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