Studies show that many Canadian adults do not have a Will. We can speculate about why people avoid this task. Perhaps they lack motivation, don’t want to think about their death, or believe that dying ‘intestate’ – without a Will – doesn’t matter.
As a lawyer with years of experience at the Office of the Public Guardian and Trustee, I can tell you first-hand that having a Will matters. A lot.
The Office handles situations when a person dies and there is no one to administer the estate. I saw hundreds of these cases.
The consequences of dying without a Will can be serious and heart-breaking. Young or disabled children suffer because of delays in settling the estate. Sometimes, the people who end up benefitting from the estate are estranged or distant relatives and not necessarily the people whom the deceased would have chosen. Administration of the estate can take longer and cost more. These problems can be avoided, simply by having a properly drafted Will.
Here’s an example of a very unfortunate case that illustrates some of these issues. ‘Andrew’ owned two small businesses. He was divorced with two teenagers, for whom he paid support to their mother, his ex-wife. He was with someone new in a common-law relationship. In his mid-40s he died suddenly of a stroke. He did not have a Will, therefore his two children were his only legal heirs. His new common-law spouse was not entitled as a legal heir to any portion of his estate. However, she claimed financial dependency and ownership of many of the business and personal assets. Andrew’s parents and sisters were not able or willing to take on the responsibility of managing his estate, winding up the businesses, or fighting his common-law spouse who started a court action. After some time and a lot of money spent on legal fees, the family and the common-law spouse reached a settlement. During this time, very little money could be given to help pay for the children’s care and expenses. Eventually, the last of the money remaining after the sale of house and business assets was paid to the two children when they turned 18. Without a Will, there was no way to delay the payment until they were older and more mature. The outcome was predictable: the children dropped out of school and spent all the money on parties and ‘big boy’ toys until the money was gone.
This unfortunate situation could have been avoided if Andrew had prepared a Will.
I’m sometimes asked if there are any people who don’t need a Will. My answer is this … very few. Possibly, a married person without all or most assets held jointly with their spouse. People who have no children, dependents, or family members, usually have some property – cash in the bank, a car, or some items – and need to tell their friends what they want to have happen to their possessions. Otherwise, the administration of the estate is more complicated and costly. A Will avoids problems.