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The Rural Voice, 1983-01, Page 18WILLS AND THE ADMINISTRATION OF ESTATES by Robert S. Johns. L.L.B. People, no matter what their age. do not like to think about dying. They do not Like to think that it will ever happen to them and therefore they are very hesitant to turn their minds to the topic of making a will. You can always predict a "great boom" in the "will business" after a fatal accident in the area and the rumour has spread that the victim has died without leaving a will. I would also venture to guess that if it were not for the fact that many people, at some time during their lives, take a holiday involving an airplane ride, they would never have wills drawn. The Boy Scout motto "Be prepared" is certainly appropriate in this particular case. You really do not make a will for your own benefit, but for the benefit and assistance of those people you leave behind after your death. Some people seemed to convince themselves that it is not necessary for them to make a will. They argue that all their assets are joint between the husband and wife so they will automati- cally pass to the survivor on the death of one spouse. They argue that they have no estate to transfer upon death or they have no dependants to provide for. Unfor- tunately. none of these arguments in any way, do away with the necessity of having a will made. I will try to outline some of the considerations that should convince you that there is just no substitute for an up-to-date will. Firstly, only by means of a will can a husband and wife provide for a common disaster situation. Some people seem to feel that because their house, farm and bank account is joint, they do not need a will. The joint property certainly may make the administration of the estate easier after the death of one spouse; however, it does not do away with the necessity of drafting a will since it does not cover the disposition of the asset if both spouses or both joint owners are dead or passed away at the same time. Secondly, only by means of his own will can a person determine who will be his executor at the time of his death. I will speak more later of the importance of an executor, but at this stage it is only Robert S. Johns, L.L.B. is a sole practitioner of law at 218 Main St. W., Listowel PG. 18 THE RURAL VOICE, JANUARY 1983 important to emphasize that the executor is the person who assumes the responsi- bility of handling the deceased's affairs at the time of his death. If the person dies without a will. the Surrogate Court appoints an administrator to handle this job on behalf of the deceased. The person so appointed may not have been the person the deceased would have chosen to handle this chore. Thirdly. if a person dies with an effective will, the executor named in the will has the authority to act on behalf of the deceased person from the time of his death. A person dying without a will may quite possibly have a considerable delay between the time of death and the time an administrator is actually appointed and empowered to act on behalf of the deceased. This becomes a very important consideration if the person at the time of his death was operating a farm or any type of business. It could be a very serious situation for any type of business if someone was not immediately able to step in and make business decisions on behalf of the person who had passed away. Fourthly, a will is the only means by which a person may determine with certainty to whom and when his assets will pass after his death. In a will, the deceased person provides for, firstly, the beneficiaries and secondly, when the assets are to be transferred to those beneficiaries. If he feels that his children might be too immature to handle their bequests at age eighteen, he may postpone the granting of those bequests to his children until a later age, at which time he will hope that they will be more mature and better able to handle the assets given to them. If a person dies without a will, the Succession Law Reform Act determines exactly to whom the estate passes and in what portions. It passes the entire share of each bene- ficiary to them as soon as they reach the age of eighteen years of age. Fifthly, if the deceased person dies leaving children as beneficiaries, most wills provide that the executors adminis- ter the money on behalf of the children, paying it to them for their care, keep, maintenance and education. Without a will, the children's share of the estate would be administered by the Supreme Court of Ontario. Any money to be paid out of their share would have to be approved by the Court. These procedures are obviously intended to protect the interest of the children; however this practise proves to be a very time consuming, cumbersome and costly procedure. I now assume that I have convinced you of the merits of having an up-to-date will. 1 will now try to outline for you some of the basic considerations which will arise in actually preparing for and drafting the will. The first consideration that a Solicitor has prior to drafting a will for a client, is that he is obliged to satisfy himself that the client has what the law refers to as "testamentary capacity" and is exer- cising his rights to dispose of the assets of his estate without undue influence. In plain English, this means that the Solicitor must determine that the person making the will understands what he is doing. He has to be convinced that the client understands what he has to give away and to whom he wants to give it. Another consideration in determining capacity is that the Solicitor must determine in his own mind that the person giving him the instructions for the will is not acting under any undue influence. In other words, some other individual, whether it be a spouse or a stranger may be influencing the person by threats or otherwise to draw his will in a certain way which may result in the selection of beneficiaries that the client might not have otherwise selected. This particular problem can be very serious when dealing with older people who might be easily pressured by family members upon whom they feel depen- dant. Once the solicitor has determined that the person wishing to make the will has the capacity to make it and is not under any undue influence, the first basic consideration is the selection of an executor. The executor is the person you entrust with the duty to carry out the provisions outlined in your will. He is responsible for burial, retaining solici- tors, collecting any monies owing to the estate, payments of debts and taxes, filing of income tax returns and once all debts have been paid, distributing the estate to the beneficiaries in accordance with the instructions in the will. The