By Matt Lalande in Estate Planning on March 08, 2018
3 Minute Read.
The process of making a Will today seems like a daunting task. Many people simply don’t want to think about their own mortality. Dwelling on death is simply not a pleasant experience. Many people are also not (or never) prepared to make huge overwhelming life decisions. Other people simply assume that making an Will and Estate plan will be too expensive or is only for the rich. They fear that hiring a lawyer to prepare an Estate plan is something that they won’t be able to afford – which causes them to be (understandably) apprehensive about calling a lawyer.
This could not be further than the truth. The reality is that most people need a simple Estate plan in case something happens. A Will and Estate plan does not need to be overly complicated. Nor does not need to be expensive.
For new parents, a Will is a very important part of your overall life and family plan. A Will is one of the single most important things that you can do in case the unexpected happens – yet – most of us are without one. Estate planning is very important because without it, it may be possible that your wishes won’t be carried out in a way that you would like or you would have planned for.
If you don’t make a will, then you won’t be able to make the decision about who would care for and raise your kids if you die. You will never be able to name who will have custody of your kids. You will never name who will care for them, feed them, raise them and make sure they obtain an education and good solid life experience as you would have given them.
It should be very important to you to name the proper people, that you love and trust, to have custody of your kids in the face of unexpected events.
The answer is yes, you can plan in advance – to a certain degree. You can surely name a person or persons that you would prefer have custody of your minor children if you die, to the extent that you have authority to make that appointment. Section 61 of the Ontario Children’s Law Reform Act allows you to appoint in your Will, one or more persons to have custody of your children after your death.
Yes and no. If you appoint a Guardian in your Will, the appointment is technically a temporary appointment that lasts for only 90 days. Pursuant to Ontario law, the Guardian that you choose (or anyone else) must bring a Court application for an Order formally appointing them as Guardian. It is very important that as a parent, you understand temporary nature of the Guardian appointment.
The policy reason for only providing a temporary appointment stems from the overriding concern of ensuring that the best interest of the child is met. When you consider the reasoning behind it, it is more a “fail-safe” procedure that truly benefits your kids.
For example, you may appoint a Guardian for your children who, at the time your Will is prepared, would be an appropriate choice. However, if your Will was done many years ago and your guardians are no longer a part of your life, then your choice would most likely not be in the best interest of your kids at the time of your death. When this happens, a Court can easily rectify the situation at the time the application is brought to ensure your kids are placed with another family member or loved one who would certainly be in the absolute long term best interest of your kids.
Despite the temporary nature of who you choose to care for and raise your kids, it is still very useful to include an appointment of Guardian in your Will. Your wishes and who you name in your Will would be considered strong evidence of your opinion of who should care for your children. Most of the time, people you appoint are relatives or very close friends whom you trust, love and respect. More likely than not, if these people are still in your life and a part of your life, a Court Order Will be granted in their favour and in line with your wishes.
If you are a couple and creating a butterfly Will (which are spousal Wills which reflect one another’s wishes), you should obviously appoint each other to Guardians. However, there is always a chance that one of you predecease the other. With this in mind, you should always give custody of your children to the same named Guardian. This would reduce confusion when your application is brought to a Court by your individually named Guardians for permanent custody.
Also, if you’re appointing a couple who are married, what happens if they separate or divorce? In this circumstance, it’s probably best that you clarify if these Guardians could care for your children jointly or severally during their minorities.
You can also prepare a “Letter of Wishes” which would give you the opportunity to explain in your own words how you hope your children be raised. The letter would be read with your Will. Technically, a Letter of Wishes is not a binding legal document, but it does provide you as the testator with the chance to express your preference on certain things that may be important to you.
For example, you can certainly provide your wishes about why you believe it’s important to have your children raised a certain way, participate in certain extracurricular activities, get the proper exercise and nutrition, pay particular attention to one of your kids who may simply needs more attention, you may detail your kids medical conditions that you think your guardians should be aware of and any other specifics that you take to heart in raising your kids.
Lalande and Company Lawyers would be more than happy to discuss your wishes regarding the Guardianship to your kids as a part of the process of preparing your Will. Remember, a Will does not have to be overly expensive. If you’re not dealing with multi-properties, cross-border issues, or a multi-million-dollar estates then your Estate plan should be very affordable. Please call us at 905-333-8888 or fill in a contact form and we would be more than happy to get back to you regarding your statement