Wills and Powers of Attorney

• Author: Tina Kamakaris/Jane Kamakaris/Louis Kamakaris
• Pages: 709-724

709

Chapter 39 Wills and Powers of Attorney

CHAPTER 39

WILLS AND POWERS

OF ATTORNEY

is chapter covers legal documents that enable people to provide instructions on how their

money and property should be managed and distributed after they die and also includes docu-

ments that enable people to appoint someone else to be in charge of their property and personal

care during their lifetime.

THE WILL

All property belonging to a person at death is his or her estate. e law has for centuries provided

that a person, by way of a legal device called a will, Precedent 39.1, can say who should receive his or

her estate after death and who should carry out the terms of his or her will. e person making the

will is called a testator (feminine, testatrix). To ensure that the testator’s wishes are carried out, the

testator appoints in his or her will a personal representative known as an estate trustee with a will

(also referred to as executor; feminine, executrix). Note that under the Estates Act and the Succession

Law Reform Act the terms testator and executor are used to include both genders.

Who can make a will To make a valid will, a person must be over eighteen years of age. A

person under the age of eighteen may also make a valid will if he or she is married, is a member

on active service of the Canadian armed forces, or is a mariner at sea. e person making the will

must be of sound mind and must not be coerced or unduly inuenced by another person into

signing the will. Here is a case in point:

In a St. Catharines, Ontario, case, Madam Justice Jean MacFarland ruled that Mr.Ralph Lewis

Homann used undue inuence to obtain a gift, inter vivos, of guaranteed investment certicates

(GICs) totalling $139,000 from 96-year-old Mr. Frederick Elmer Becker, just a month before

Mr.Becker’s death. Mr. Homann, a non-relative, took Mr. Becker to a lawyer, Mr. C. H.

Mahoney of St. Catharines, where Mr.Becker made a will naming Mr.Homann as the major

beneciary. About six months later, Mr. Becker went back to the same lawyer where he made

a new will, this time leaving only $15,000 to Mr.Homann and making his niece the major

beneciary. Mr. Homann learned of the new will when he noticed the hangers on Mr. Becker’s

coat rack were dierently arranged, indicating Mr. Becker had gone out without Mr.Homann’s

knowledge. Mr. Homann then took Mr. Becker to another lawyer, Mr. L.R. Allen, of Beams-

ville, Ontario, who arranged the transfer of the GICs over to Mr.Homann. Mr. Becker died a

few days later. Madam Justice MacFarland ordered set aside (void) all GICs that Mr. Homann

had cashed to buy a new house; she also ordered all uncashed GICs transferred to Mr. Becker’s

estate, damages against Mr. Homann of $54,000, and pre-judgment interest on $139,000 from

the date of the GICs transfer.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

710 Legal Office Procedures

Testator’s domicile Basically, domicile is where the testator lives permanently. If the testator

lives in Ontario or has property in Ontario, his or her will, wherever executed, can be processed

in Ontario if it is in the proper form. e testator may gift personal or real property located in

or outside of Ontario, including property in another country. Under subsections 36(1) and (2)

of the Succession Law Reform Act, a testator’s gift of real property under a will is governed by the

law of the place where the real property is located, and a testator’s gift of personal property under

a will is governed by the law of the place where the testator was domiciled (lived) at the time of

his or her death.

Basic will provisions e deceased’s debts and death expenses must be paid before any

beneciary may receive the gifts under the will. e intent is that beneciaries must not take the

gifts under the will at the expense of the deceased’s debtors. e following provisions, therefore,

are included in every will, and if omitted, they are deemed to be included:

• Funeral expenses.

• Costs of administration (including the fees of the estate trustee with a will for settling the estate).

• Debts of the testator (including all bills and debts, other than charges/mortgages, the testator

owed).

• Remaining assets. e rest of the estate goes to the beneciaries named in the will.

Estate trustee with a will (executor) e estate trustee with a will is the party whom the

testator names in the will as the party responsible for gathering the assets of the testator, paying

the testator’s debts, and distributing the remainder of the testator’s estate to the beneciaries

under the will. e testator should provide the estate trustee with a will with a copy of the will

and advise the estate trustee with a will as to the location of the original will.

Trusts In most wills, the testator’s instructions to the estate trustee with a will (executor), e.g.

“to pay,” “to set aside,” are referred to as trusts. is is why the estate trustee with a will is often

referred to in a will as a trustee. e trusts may also include trust funds which testators often set

up for their young children or grandchildren to be managed by the estate trustee with a will or by

another named trustee until the children reach the age specied in the will.

Beneficiaries e people or institutions named in the will to receive a gift under the will are

collectively referred to as beneciaries. Where the will reads: “I give, devise, and bequeath...,”

the word devise refers to a gift of real property, and the word bequeath refers to a gift of personal

property, usually money, which gift is further known as a legacy. References to a devisee, there-

fore, usually mean a person who is named in a will to receive a gift of real estate; references to a

legatee usually mean a person who is named in a will to receive a gift of personal property, usually

money. Although the distinction between gifts of real estate and personal property is no longer

recognized by the law, the terms “I give, devise, and bequeath...” are often found in wills. e

term issue is often used in wills, and it generally means descendants such as children, grandchil-

dren, great grandchildren.

Division of estate e term per capita is often used in wills, and it generally means an

estate gift to be divided equally among all of the testator’s children, grandchildren, great grand-

children, etc. who are living at the time of the testator’s death. e Latin term per stirpes is often

used in wills, and it means “like the roots or branches of a (family) tree.” Essentially, each “living

branch” of the family tree gets an equal share, and the same applies within each branch or sub-

branch. In other words, it means an estate gift is to be proportionally divided among the children

of the testator and, if any of the children of the testator predecease the testator, then the share of

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