FP Answers: Can my dad draw up a will on his death bed? And if so, how?

Many experienced lawyers will not attend hospitals to prepare wills

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By Julie Cazzin with Ed Olkovich

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Q: My father has been sick for a few months and was recently diagnosed with cancer for a second time. This new type has progressed rather quickly and he is now in hospital. We are currently talking about his affairs and he wants to get a will written up. I guess what I’m asking for is general advice. My dad isn’t on good terms with a lot of our family and wants to stop those individuals from having a claim on his estate. Any advice would be appreciated. — Heather B.

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FP Answers: Heather, you mentioned your father was in hospital and considering making his will. Unfortunately, in these difficult circumstances, many experienced lawyers will not attend hospitals to prepare wills. Estate matters are controlled by local laws, customs and general legal principles. Each jurisdiction has different definitions and legislation that may require strict compliance for wills to be legally valid. That is why it is not possible to provide you with specific legal advice.

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For this and other reasons, your father needs to privately consult his own lawyer to learn what is necessary. Lawyers will ask if your father has foreign assets, digital assets with substantial value or even out-of-province property. If your father, unfortunately, passes away without having a valid will, his entire estate may be distributed according to local intestate laws. This may not be acceptable to you. Here are some key points to keep in mind.

Provincial intestate rules

Each province has intestate laws that determine who shares in your father’s estate if he does not have a will. All his assets may be controlled by laws where the assets are located. Intestacy laws determine who can be put in charge of your father’s estate as an executor or estate trustee. Executors collect estate assets to pay debts, taxes and distribute your father’s worldly goods.

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Note that some of your father’s assets may not be controlled by his will. This may include assets with designated beneficiaries such as insurance, registered retirement income funds (RRIFs) or tax-free savings accounts (TSFAs), or jointly owned assets like homes or bank accounts. During the COVID-19 pandemic, provinces relaxed their rules for making wills. Estate lawyers can advise your father of the current status of such changes in each province.

Capacity to make wills

Wills are legal documents and they are interpreted by judges. This is why it is beneficial to have a lawyer consult with your father to determine his wishes. Assessments of your father’s ability to make a will should be performed. Since your father is in hospital, an estate lawyer is obligated to confirm your father’s medical condition does not affect his capacity to make a will.

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To make a will, your father must have testamentary capacity. This is a legal term that courts must decide, not a medical one. A lack of capacity to make a will is a major ground for legal challenges to a will. If you are a beneficiary under your father’s will, your involvement in the preparation of that will can create suspicious circumstances. If suspicious circumstances exist in the preparation, execution and signing of the will, you may be called on to defend the will in court.

Father’s legal and moral obligations

Each province has different rules to provide for dependants. These persons may be defined in provincial laws. The laws even protect children born after your father’s death. Your father’s marital status was not mentioned. If your father has a married spouse as defined in Ontario, his spouse will have rights to share in the property and get support, subject to any domestic contract. Ontario only allows married spouses to inherit a share of your father’s estate.

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Does your father have a common-law partner? In Ontario, his partner may have claims against his estate. They may need to start legal proceedings for support and equitable court remedies if provincial laws do not provide for them.

Assuming all your father’s legal and moral obligations are met, your father is free to deal with his estate as he wishes. A local estate lawyer can explain the steps he can take to deal with his property if he has capacity. This may include obtaining medical assessments from doctors.

An estate lawyer can propose clauses to protect your father’s will/estate from frivolous challenges. These will provisions must be carefully worded before courts enforce them.

Ed Olkovich is a Toronto lawyer and certified specialist in estate and trusts law.

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