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