Will Planning to Avoid Disputes

By Merovitz Potechin on Wednesday November 20, 2019.

Families are complex and the dynamics that can occur when it is time to divide the assets left behind by a loved one can be challenging. This is especially true if there is no will to use as a guide, or if not much thought was put into the execution of the estate ahead of time. Let’s take a look at some of the issues and disputes that can arise if a proper will is not in place.

What does intestate mean?

A person who dies without a will is known as an ‘intestate’. Dying ‘intestate’ means that there is no valid will to direct the distribution of assets left behind by the deceased. In Ontario, the Succession Law Reform Act (the Act) states the following in regards to someone who dies without a valid will in place:

• the first $200,000 is given to the deceased person’s spouse if he or she has decided to claim his/her entitlement. The other possibility is to claim half of the net family property.
• anything over $200,000 is shared between the spouse and the descendants (e.g. children, grandchildren) according to specific rules.
• if there is no spouse, the deceased’s children will inherit the estate. 

Court challenges

While the Act can provide some clarity as to how the estate will be distributed if someone dies intestate, there are a variety of exceptions and scenarios where common-law spouses, distant relatives, parents, siblings or nieces and nephews can be involved. This is where court challenges become common as family members look to challenge the distribution of the estate since there was no will to specify what should happen. Even though court challenges can also occur when a valid will exists, the lack of one creates even more uncertainty as to the wishes of the deceased since there is no document to consider.

Emotional burden

When a loved one dies intestate, not only will the family be dealing with the grief of their loss, but they will also have to eventually deal with the remaining assets. This can become an additional emotional burden as family members must determine how the assets should be distributed, who gets what, what the deceased may have wanted, and what the law in Ontario dictates.

Unclear legacy

A will is a tool that can demonstrate what someone values, how they want their life’s possessions to be shared after they are gone, and how they wish to provide for their loved ones. In short, a Will  helps add to a person’s legacy and the memory they are leaving behind.

While it is true that starting the estate planning process can be personally challenging as it forces us to confront what we truly value, avoiding the creation of a will can impede someone from creating their legacy as they have left no direction as to how their valuables should be handled once they are gone and who should be provided for.

If you are ready to start the estate planning process or if have any questions about creating a valid will, contact our wills and estates lawyers at Merovitz Potechin LLP.