Wills and Power of Attorneys are important legal instruments used in estate planning. Incapacitation and death are beyond anyone and could occur without prior notice. Therefore, it is of utmost importance that every individual plans the distribution of their estate and designate trusted individuals to manage their personal affairs when capable to do so.
There are three parties to a Will:
- Testator: The individual drafting the Will
- Beneficiary: The individual receiving a benefit under the Will
- Executor: The individual appointed by the testator to execute the Will after death
A Will is a written legal document that sets out the distribution of an estate according to a testator’s wishes. A Will must clearly identify the beneficiaries and the property allocated to each. A Will can be changed and altered by the testator until it takes affect at the time of the testator’s death. Despite the various forms of Wills, such as Single Wills, Joint Wills, and Mirror Wills, in Ontario, there are only two valid types of Wills:
- Attested Will: A will drafted by a professional, signed and dated by the testator, and witnessed by two independent individuals who are not beneficiaries or the spouse of the testator or beneficiaries. The role of the witnesses is to attest the identity of the testator and confirm that the testator was mentally and physically capable at the time of signing the Will.
- Holographic Will: A Will that is handwritten and signed by the testator. The Will does not have to be witnessed or attested.
Wills are important because when available, they take precedent over the Succession Law Reform Act. However, if a person dies intestate, meaning without a Will, Part 2 of the Succession Law Reform Act (SLRA), RSO, 1990, cS.26 sets out the distribution of the estate. If the SLRA applies, it applies to the fullest and no one is able to alter the way the estate is distributed under the law.
Power of Attorneys
A Power of Attorney (POA) is a legal document that designates a specific individual(s), known as Attorney(s), to make decisions on behalf of the Principal, the person drafting the POA. There are two types of POA’s:
- POA for Personal Care: the Principal designates an Attorney to make decisions relating to the health and personal life of the Principal.
- POA for Property: the Principal designates an Attorney to make decisions relating to the financial affairs of the Principal.
A POA takes affect at the time the Principal signs the document, or at a future date when an event or condition specified in the document occurs. POA’s are important because if an individual becomes incapacitated without having POA’s, any individual could apply to the court to be appointed as a representative. The Principal will have no control over the court’s decision of appointment.
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