 Thank you ladies and gentlemen for Waiting patiently while we had a late start, you know, I have some of these situations Where everything goes wrong first of all I left half of my speech at home I probably know it anyway, but you know and then I lost my thumb drive with my PowerPoint Presentation so this has been an interesting last ten minutes. I trust the rest of the lecture will be a lot quieter. I Want to welcome you today to The first of the mini-law lectures this year sponsored by the Schulich School of Law The best of the mini-laws they tell me I guess you'll decide that later Series of best of the mini-law lectures later or all over this term which is are going to be in Commemoration of Dahausi University's 200th anniversary. I should Introduce myself. I'm Faye Woodman and I have taught for its unbelievable 38 years at Dahausi Law School The University of Ottawa and Sherbrooke University in the areas of estate planning trust property and elder law I've also on occasion from time to time with others Advise the Nova Scotia Law Reform Commission on special topics such as matrimonial law Intestate succession Powers of appointment and other such legal instruments and I'll refer to proposals by the Law Reform Commission of Nova Scotia Which I think has been renamed to the Institute for Law Reform and Access to law that might not be exactly correct I'm going to refer to these proposals by the Nova Scotia Law Reform Commission, but I think I'll keep my feet Firmly in the law as it is Because if I keep telling you well it could be this and could be that that's very confusing and doesn't tell those of you Who are thinking of drawing up a will now? Exactly what law you will be facing. I will talk about the will today But I'm also going to be talking about some other adjacent talk of documents powers of attorney continuing powers of attorney and Personal care directives and I think they're important documents separate from your will but traditionally Drafted at the time your will is drafted So the first question that I'm going to answer says this works is Why have a will? Why do we have a will? Because a lot of you are thinking hey, I don't get my haven't got much money. I have everything in joint tenancy You know, why should I have a will? Well, Laura's will tell us that we have to review a will every five years, but we don't I don't Sometimes I'm surprised to see what I put in previous wills So we write a will and it might last for a very long time So our circumstances may change Over the years that we have a will and it's important to have that will that will Represent or represent your interest in most circumstances If you don't draft a will You'll have something like a government drawn will if you don't have a will The government will draw will for you and that terms of the will are delineated by the testators The Intestate Succession Act the Intestate Succession Act tells us what kind of will we're gonna have if the government draws us for draws it for us and Frankly, I think for most of us here and of varying ages and backgrounds just looking around I Think a government drawn will won't do what we want for one thing in government drawn wills. There is a possibility Sometimes a certainty that children will take under the will That's really not okay for most Canadian couples where the wills they draft privately Excuse me are Essentially all to the spouse and then when both spouses have died then to the children That's not what a government will does it says to the spouse under certain circumstances Is certain maximums and then to the children or not then to the children and to the children as well I Don't know about you, but I've have passed the time of sleepless nights I have managed to survive the terrible twos I Enjoyed that short period before my children reached the age of adolescence but emotionally and Psychologically if my partner dies, please please leave all the property to me at least for a while until I get older not only it's emotionally and psychologically do I want the children to take but Many people cannot really have a Viable economic life unless they inherit all the estates of the deceased spouse So that's very important for you to consider if you think well, I'll let the government draw up my will The other thing that the government does which is really Quite exceptional and most people don't understand it is at least in Nova Scotia We discriminate against common-law spouses So under a government drawn will you the common lost your common-law spouses will not take anything and During the years that I was teaching property law every year at the first of the year it asked my Law students lawyers to be what they thought the position in Nova Scotia was of a common-law spouse and Most of them seem to think that after some laps of years a common-law spouse is treated like a legally married spouse Not so if you leave if you don't draw up a will you have a common-law spouse That common-law spouse will be left with nothing now I specialize in getting around that circumstance and I know ways that perhaps might succeed But they're not ways that the general audience would like to take litigation and the guess is you start this litigation At about eighty thousand dollars illegal fees So prevent that in the first play pace place by giving or making sure that you have a will and that in that Will you bequeath to your common-law spouse assuming you want to I? Know one story that happened in Nova Scotia, which is it I think exemplifies how Families fall apart or lose their senses or become insane When money is involved and in this case the young couple lived together for ten years not legally married He was a motorcycle enthusiast and one day Regrettably he was in a crash and he died At that point his parents Sooth the estate for the young man's estate Which would have precluded a taking by the wife or the partner and the children their two children The Nova Scotia government said rightly That there are no illegitimate children They're just children and the children did take from the father's estate However, it's noteworthy that in that particular case the common-law spouse Didn't claim anything from the estate and if she had she wouldn't have won So you had a very odd situation because someone didn't drop a will of the kids having all the fun family money and Their caregiver and their mother being absolutely without anything so you obviously don't want that drop a will subsequently this position was Solidified by the Supreme Court of Canada who said that if you're living common-law that must mean that you're thinking that you're going to Keep your property separate Well, I think most of us know that common-law spouses often don't think Exactly what's going to be the upshot of death or separation. They don't think of things at that time and So the common-law spouses Go on and function as if it's a marriage and the dissenting Judge in that case said if something looks like a marriage Functions as a marriage it should be treated in law as a marriage But in Nova Scotia, it isn't Now I should tell you again that the Law Reform Commission of Nova Scotia is Developing a discussion paper which would change the nature of governed government drawn wills and Would allow for example common-law spouses to inherit But it is the other aspects to it which may or may not be adopted by the government, which would be I think even more unsalutory salutary for example The inclusion of step children as people who might inherit under a government will And I think the upshot of all of this is that if you want a will that serve you and your Circumstances then you must have your own will drawn up and you cannot rely on a government drawn will Or what they call in the legislation to be in test to see other reasons to have a will and you might think that you're home free if you don't have kids and You're legally married say you're two young professors and everything's Great and you don't want to get involved in drawing up wills are too busy having fun And you can see this couple here is having a lot of fun Except that I didn't show the end of it Now whether they did or did not such suffer an unfortunate fate I don't know but we'll assume they did and There's a rule in Nova Scotia that says where people die in a common accident and you can't know who dies first Then it will be assumed that the elder dies first and then the Younger dies next. Well, what importance has this you'd say? Well, if you don't have a will that deals with common disasters Then under a government drawn will then what will happen is the property of Usually the man because a man is usually a year or two older will devolve to his wife who is dead But she's the second to die according to the steaming provision and then all that property will devolve to her parents And his parents won't get anything That's a perverse result which we can eliminate by drawing up our wills But happens under a government drawn will There's lots of other things that if you don't have a will you can't do and one of them and it's very important is to be able to give Specific gifts to specific loved ones has beneficiaries. So whether it's my old battered guitar or my my my skis or my diamond ring with emeralds Circling the center of it, whatever it is if I want to give a specific gift To a specific individual I must have my own will I Had a client once many years ago, and she was a lady of frugal disposition And she didn't want me to drop a will for her because she was her intention in her old Antique-filled home to devise specific furniture and specific China to particular Nieces and nephews and members of her family So she thought that putting it all down the will and paying me to do that was an awful waste of money So what she did is she went to each couch each chair each table even the China and She labeled them with the names of the potential beneficiary Now in law as far as I could see this had no effect at all Although it was interesting to have tea with her because you just tip up the tea cup and you can find out who the beneficiary was Happily Her family agreed with this and so there was no dispute and things went on as she she wanted But if they had to dispute it, I don't think she would have had her way The other thing that you might think of it a will is to leave specific gifts to a charity and Whether we're not obviously Bill and Melinda Gates and we're not warm buff and buff it But we probably have some small amount of assets that we want to give to a charity And you can't do that under government drawn will but you can under ordinary will and I shouldn't say that when you are giving Assets to charities, please please Indicate who in the charities to have control and at what level the charity don't give a gift to the Catholic Church Designate the priest and the parish don't give a Gift to soccer say it's soccer Nova Scotia or Canadian national soccer or whatever so you have to be very careful when you give charitable gifts I Think at this point you'll say that notwithstanding everything that professor Woodman says. I really still don't think I Should have a will wills are expensive their lost leaders for Lawyers, but I still don't want to spend that money and Most of my property is in joint tenancy and virtually every one of us here would have property in joint tenancy particular a house Joint tenancy means that when one of the person dies the other person takes over So my husband and I have a house in joint tenancy. I die He gets the rest of the house the whole house or vice versa. He dies and I get the house and Wills don't affect that. It's nothing to do with wills But there's another area That are without wills are not affected by wills specifically But are very important which is when you get your will drawn up one of the things the lawyer or you should do is Take a careful review of the property to which Beneficiaries are designated in this respect. I want to talk about special kinds of property the special kinds of property are Registered retirement savings plans tax-free savings plans pension plans insurance insurance policies and Usually in these Contracts you designate the beneficiary in these contracts rate in the contracts. You don't do it your will you can't do it your will It's somewhat complicated, but usually you designate beneficiaries in the contracts the problem with designated beneficiaries is That they're not revoked by your marriage or divorce and this happened With an assistant of mine whose ex-husband 20 years after they parted and 20 years after the last spoke died and forget or forgot to change the designation on this RRSP so To everybody's surprise all the mountain the RS our RSP went to his former wife Whether you think this is justice or not she did because She thought it was just virtually adequate compensation The other things that there are the things that you should do when you drop a will For one thing even if you think you don't need to will that badly You're some of you anyway are the baby boom generation as I am and we expect to Inherit a lot of money so to make our Property a little different than a bunch of things held in joint Tennessee That's one thing the second thing is that drawing up a will Gives us the opportunity to think about ways of saving tax Even if we have a little money ways of saving tax can have a significant difference on our financial position and In this respect, I want to talk about one particular problematic area It is parents who have children with disabilities these parents of the middle class are caught in Sort of a middle world Being middle class. They're not poor enough to say well whatever that child is going to get It's only going to get from social welfare But not rich enough to say that we won't worry about social assistance or social welfare so the aim of this middle class Couple with a disabled child is One to give them extras in life to give them the special things The special trips the special education the special Perhaps equipment they need at the at the same time not disentitling the particular adult child to his or her social welfare benefits So it's tricky. It's nice to give things in your will to your child But the only effect of that is it substitutes the government money with yours That's not a very good result because certainly the child isn't better off There are ways of doing this in a limited way You should look at registered disability savings plan and qualified Tax-free trust Both these kinds of trust and hence and trust are ways of preserving to some extent rights to social service by Giving a child who's disabled and unable to earn their own money a little extra So that's something you will want to do when you're drawing up a will and really you would need a disabled You would need a lawyer to help you draw Will up for a disabled child now there's a couple other things that you can do that are important to and This person is important This is Fido here. I was going to get a picture of my cat He comes she comes by her name by a Lou Harris her name sweet Jane and Sweet Jane just wouldn't cooperate today. She didn't feel like it. So there's Fido The thing is your animals, although Professor Black may disagree with the philosophy is Our property and so in a government will your animals would go with other property The problem is there would be no provision for their future Feeding toys or catnip for anything good like that. I figured today. We have many people going buying Marijuana so at least my cat should have her cat Well There's no way once I die once her caregivers die that she's Necessarily going to be provided with each thing So what I will do is a lawyer is I'll set up a little trust which is just a mechanism To allow one person to hold an administer property on behalf of another person and Usually in a trust the beneficiary of the trust is a person But occasionally the common law lets a beneficiary trust be an animal and These animals could be your cats or your dogs or your horses or whatever The late hardly lamented Lyanna Helmsley the queen of hotels actually left a couple million dollars to her little dog and it's interesting because the Care caregivers of that dog were quite happy to Accept the challenge of looking after the dog who after all only had a few million But they were quite concerned over the monies they paid for security Because a really big risk as they saw was a dog was going to be done that and They didn't want that to happen. So it didn't work out necessarily as well Perhaps as she thought anyway my cat or your dog is Obviously, you're not going to have a trust so large as that and we could make provision for the welfare after we die I'll tell you a few things about what Will can do But what does what can't will do? We like to talk about this thing you've probably heard about this idea of testamentary freedom a man Because it was in the days of men a man can do whatever he wants with his property and Leave his children penniless and his wife hungry and that was the idea initially of the common law today things have changed somewhat and Anyone who's making a will is limited by three or four principles The first thing that limits you in making your will is a right in Nova Scotia For the surviving spouse to have a one-half chair of the estate of the deceased So that eliminates a lot of risk for the surviving spouse because he or she is the case may be may be able to Take one half of the estate now the estate is defined for the purposes of this act as Matrimonial assets and that doesn't include all assets in Nova Scotia Nova Scotia is really unique in so far as it defines matrimony assets, but as not to include business assets, but again the law reform Commission of Nova Scotia has made a Paper that the government I understand has rather positively received and this may be changed in the future But in some ways not for the better if you want to have testament to freedom to include not only matrimonial assets But all assets, but this is a change that hasn't been officially adopted by the government nor has any legislation been introduced So your testamentary freedom is limited right there by the fact that half of the deceased property goes to the surviving spouse The second way that your testamentary freedom is Limited is by the fact of the testators family maintenance application the testators family maintenance acts out application is the means why Or how in the vernacular you can test a will you can test a will under this legislation In Nova Scotia A number of people in various provinces across Canada can contest the will and some provinces allow a larger group than other provinces But in Nova Scotia the only two people who can contest a will are the wife and let's face it She's really pretty well off with her half-share under the Matrimony Property Act or the children Now by children and this is very significant Not only can minor children contest the will which one would think would be an obvious But adult children who are not reliant on a parent can also contest a will There's only really With respect to testamentary freedom, it's In Nova Scotia the Nova Scotia courts have shown a considerable Dislike in really actively supporting adult children in contesting the parents Will's some courts such as those in BC have been much more active, but the courts in Nova Scotia are quite conservative The Formulation is they asked did the testator that's the person who died did the testator make Adequate provision for the proper maintenance and support of the spouse and the child Was adequate provision made for the support of a child. Well, if you ask me if the child is adult Zero is adequate provision for an adult child really So is there any circumstance? Moms pretty well governed by the Matrimony Property Act But what about the kids minor kids are going to get a share obviously But what about adult kids kids that you don't like kids that you don't get along I Was saying to my brother-in-law your kids really answer you much faster than my do my my do and he said no I was I was under misapprehension his takes three to four days and I said that's better. Mine only Text me when he needs something, but that's that's kids of a certain age But you have you might have to support these kids And What do you what what do we consider act? Adequate provision for the proper maintenance support if there are adults on their own who've left the house There is provision in The wills act for you to write in the wills while you're not giving money to certain people Especially if you think the will might be contested that won't eliminate any litigation Necessarily, but it'll give the court an insight into why you're doing what you're doing Generally speaking there's in interpreting these words. There's a two-step test First of all if you're legally required during your lifetime to support somebody Then after your death, you're gonna have to continue to support them like minor children and a spouse Which I said is more or less Being taken care of by the matrimonial property laws in any case So an adult child wouldn't fall within that first rule The second rule however is more discretionary in the courts more sort of fuzzy and the second rule is Does the testator the person who's making the will have a moral obligation to the adult child and And determine if you have a moral obligation you look at society's reasonable expectations in light of contemporary community standards Now isn't that just a way to give the court direction or discretion to do pretty well what they want to do? So in Nova Scotia, they don't like to do it very much and they don't BC They're much more free-wheeling and they are more apt to find An adult child as an appropriate dependent under the testator's family maintenance act There is one case there it was before matrimonial Property laws in BC where a Testator had a wife and two sons he disinherited his wife And the court soon put paid to that he couldn't disa hair this wife He had an obligation to supporter Spouses in marriage have an obligation to support each other even though they may each individually have a job But the question was what about the two adult sons? He left all of us a state to one favored son and Left out his wife and the other disfavored son Now looking at the Relationships over the years We have to come to the conclude to conclude from the terms of the case that Basically, he didn't like the one of the sons because well, he just didn't like them and The court in that circumstance while restoring most of the estate to the wife Also gave a little bit not very big but a little bit to show its displeasure to the disfavorite son and showing that By disfavoring one son and an advantage to another son for no particularly valid contemporary Morals reason then he shouldn't do that. And so One of the sons a disfavorite son didn't take as much as a favorite son, but he did take something So to a Nova Scotia Sometimes the courts have been a little more lenient with kids adult kids who've fallen on Hard times generally not for any reason. That's all that unique to them And in one case where her daughter was in social welfare, she did receive more money than her siblings the court does consider the whole relationship between the child and the testator and I will just briefly refer to some of the things that considers It considers a character of the child the contact of the child and its relations with the parent the financial circumstances of the child of the Claims which any other children or spouse in some circumstances have upon the estate Any provision which the testator while living has made for the dependent or for any other dependent? so you often see the case of of I know of one case where there's two boys and one girl and Another girl who is a woman with disabilities and one of the girls has stayed home and all her life has looked after the woman with disabilities and The two sons have gone on to have a full life of marriage and children and whatever and come the time to divide up the states It may be that the woman who's been her life looking after a disabled younger sister may in fact have more of a claim than other people and Also, you look at services rendered by the dependent to the testator Or any property given by the testator to the dependent? And this is often a source of conflict when a parent sets up one of the children adult children and the business or Lends them some money that never gets paid Then equality among the children is often a subject of debate so you can't You are limited by the matrimonial property act you are limited by by the fact that you can challenge the will and You are limited by certain public policy principles and these public policy Principles are not found in any legislation They're not found somewhere written down But they are derived from the cases settled by the courts of Nova Scotia and other courts over hundreds of years About what is or when something is against public policy and Public policy evolves like contemporary society evolves So what was public policy a while ago may not be public policy today? But there are few things that I could say about public policy and wills you can't in your will give an estate to somebody on Condition that they never married that's prohibited Or you can't give a state A property to beneficiary on the condition that they divorce the present spouse You can't give money in a state to a child that would interfere with the relationship between the child and their parents So there's pretty obvious. These are pretty obvious ones But you can't give it seems from the cases that I am these are old cases Maybe decided a hundred years ago So they seem old-fashioned to us it may not seem all as old-fashioned some of newcomers to Canada For example, you have to you can say that somebody has to practice a religion You can say that someone has to marry within the religion So the this may provide some Limitation on what you can do With the advent of the Charter which only governs relationships between the government and Citizens and not between citizens the Charter doesn't apply to wills But the spirit of the Charter does apply to wills. So some of the more egregious and obnoxious Conditions put on gifts under will may be Eliminated as against public policy in the future We see just looking at a number of recent cases in Ontario and New Brunswick and other parts of the Maritimes The court held it was Public policy to make a gift to a white supremacist organization against public policy Another one, which is really interesting. It was against public policy to allow the disinheritance of girl Who was a daughter of a black father? And she went out and had a child with a Caucasian father And he disinherited her and they had they said well, there's a lot of reasons In that case, but one of the things they didn't like the court didn't like was a public It was against public policy to disinherit people solely on the basis of who they consorted with where it was a racial distinction and There is possibilities of arisen in some jurisdictions where you disinherited son because you don't like or a daughter because you Don't like the sexual preferences Then that too would be a condition and a will against public policy So you can't obviously do anything you want in a will You can do some things, but some things are against public policy. I want to talk about one other thing and I promise to talk about it and I reviewed my notes and my work in the area and I have very little to say to you in More ways than one about digital assets. Well, what are digital assets? There are email There are Facebook. They're Lincoln. There are rewards or air miles. They are music. They are photographs in a drop box They are dating sites, they are our little stash of whatever Okay Digital the position of digital assets and what they are and what they mean is A little bit up in question in Canada today The uniform conference of Canada has produced a model act on Access to digital assets by fiduciaries. That's a mouthful But that model act hasn't been adopted by any province in Canada now 43 of the United States States have Adopted similar legislation and that's significant because many digital states May be situated not in Canada They might be situated in the United States and subject Unreasonably I think and confusingly to American law to sort out the exact position of digital Assets and what you can do with them. Well, it's taken me one One One article of 50 pages or so and I'm on my second one So I don't think I'll do it today in the lecture. I'll tell you some practical things you can do though If you're worried about what's going to happen to your digital assets on your death the first thing you should do is Read the contents of the contract that you make between the provider the person Facebook and Yourself and that contract is all that stuff that you skip Every time you get down to clicking I agree And you have agreed to the most amazing things at times you will not ever know that really But to know where you are in the first place should you ever come to that situation? You might read the terms of the contract they call it the terms of service and I might fall into that nomenclature So you look at the terms of service and sometimes the terms of service will tell you what happens on death like Facebook You know, it has a memorialization feature to it You can appoint someone to take over your Facebook for a period of time after your death but other digital assets and contracts between Individuals and providers say nothing about death Or they say very little and not enough to really guide you So the courts are flexing Themselves they're trying to decide what to do with digital assets And I think in Canada the reason they're not going forward this model act is because it's so darn confusing Because digital assets more than anything are a matter of international law Where is your Facebook situated? Is it situated where you write on your computer? Is it situated in California? That's an interesting question a lot of digital assets Go across International lines and then to figure out the law that applies will be the law of the appropriate international jurisdiction which can be a very difficult thing to find out the Europe has introduced the EU has introduced rules about digital assets just recently last year and They will help provide for us a model of what we should do and Frankly, we will also be influenced by the American example We have to be we will be because we're so close to America and we use so many of their digital assets In the meantime what to do in the meantime if you're worried about your digital assets after your death then give somebody your executor or friend or family the Passwords to your digital asset. I can see you doing that. You'll do it like I do I can't remember the passwords of whatever I have now and giving them to someone to look after I mean it seems too much to do to tell you the truth But that's the theory if you're approaching that time in life when you are looking at the loss of all your digital assets Give your password to somebody else now that is complicated because some of the terms of services of those digital assets Say that if you give your password to anyone else the contract is immediately canceled and you lose everything So if you're damned if you do you're damned if you don't The other thing is you could put your passwords in what they call digital vaults You see them advertised where they'll hold your password or till you die and then give the passwords to the executors my big question of Everybody is do you really want some or all of your digital assets to be examined by your friends family or Executor and the answer may be no. I don't want my Madison Actually dating site to be examined by my executor family. I don't want my stash of whatever porn or Whatever, I don't want them So there's a whole problem of some people want to let the family know what's in their digital assets and some people would just as well that they provide or throw the key away and so it's Difficult one to get access when you want access and it's difficult to close down the digital asset When you want it closed down so no matter what you do it's fraught with difficulty So the best thing is to read the terms of service if you agree with the terms of service go with that if you don't I Guess risk giving your your password to a friend or the executor and if you don't want anyone to Investigate your digital assets. Maybe it's best not to speak about them at all Well the question I want to ask now is who can make a will and that's really a simple question in the first Situation all that's telling the wills who can make a will Well, you can make a will if you're of age over the age of majority and Under the age of majority if you're married interesting enough the special rules for soldiers and mariners The problem that will arise in most your lies will be that in order to make the will you have to have something called mental competence and Mental competence is sometimes a tricky Problem when you're dealing with seniors they may or may not have a mental competence It's interesting that for every legal function in the common law There's a test for mental competence What I'm saying in other words is that you could have mental competence to do one legal thing and Mental not mental competence to another legal thing So interestingly enough the courts have said and this is very controversial But this seems to be the law in Canada that you need more mental competence to drop a will Than to marry. That's an extraordinary thing, isn't it? In fact the highest level of legal or mental competence seems to be to make a will And you have to know a couple of things when you make a will So if you're you have a senior and you're a caregiver and the senior wants to make a will You have to make sure they have mental confidence and it's a delicate task if you're doubtful the lawyer Hospital or medical professionals will help you with that with different kinds of tests But it's a very sensitive thing to do to find out of Elders or seniors have mental competence and you should realize that you only have to have mental competence when you're executing your will and giving directions for your will So that you could maybe with one senior make a will in the morning It would be perfectly okay because in the morning the fresh and bright bright and they have mental competence And then in the afternoon in the evening they get tired and they lose that mental confidence And that's okay if you've got a validly drawn will and executed will in the morning So to one day they might have mental competence and then the next day they might have mental competence That's all right as long as they make their will during that period of lucidity To know to make a will this is what a senior has to know They have to know in a very general way what making a will is they don't have to understand what a will is They just have to understand that they're doing something that will promote the accession of their property on their death to some other person They have to know what I'm making a will means they have to have to know in very general terms of nature and extent of their property and they also have to know who are the natural objects of their bounty who would want to expect That they should leave property to who are the friends who are their families and Finally they shouldn't be not laboring under any delusion that distorts the process of will making and The delusion that often will distort that process of will making among seniors as they think their children are Stealing the property that seems to come up a lot and That's a distortion that will be make the make them unable to participate in the will making Process because that view distorts the whole idea of the natural objects of the boundaries In one case the caregiver a sister was obviously the person that Probably should have received the property, but her sister who was in the advanced stages of dementia developed a Passionate love for the local hermit and made a will that left everything to him and the court held in that case She didn't have will making power. There are two ways of making a will There's a formal will that lawyers generally make it's in tight It's typed usually it's signed at the bottom by the testator and witnessed by two witnesses in a certain Formality a certain there's a certain way of doing that and it isn't done you're you're the witnesses must sign it in The presence of each other in the presence of the testator So that's what kind of formal will so many people got the formalities of a formal will mocked up Including lawyers either they didn't have the proper signatures or the people didn't sign in the proper Order, so what happened is that the government brought in another type of will which had been around in other Jurisdictions for some time in Nova Scotia. We have holograph wills now the holograph will is a will which is Entirely I mentioned that Entirely in your own handwriting and signed by you at the bottom So you think that one way or another Testators in Nova Scotia would be able to make a formal will or a holograph will but the reality was Internet it intervened and you could see how filling in the blanks in an internet will without the formalities Would not be exclusively in the handwriting of the testator nor would have the formalities of a former will would be neither one nor the other so Quite a few years ago the government of Nova Scotia acted section 8 of the week wills act which says that If a writing embodies the testamentary intention of the deceased and it can be proved It will be treated as if it was a will and this has been tested in a number of cases in Nova Scotia and Interestingly, I find it quite interesting not always successfully on the part of person who's Alleging that this piece of paper is also part of the will or the will Even though not subject to the formalities of the will nor a holograph will But it's interesting that in New South Wales fairly recently a Testator typed his will into a cell phone now question is that writing? I don't know didn't sign their name and then committed suicide and the person It was found later the court found later that was a valid written will and Even though it didn't fulfill either the formalities of the formal will or a holograph will it was a Writing that encompassed the testamentary intentions of the person who committed suicide I want to talk about a few other things that you'll be interested in I think Which is under a will you have to have an executor that's someone to carry out the obligations of the will now an executor someone appointed by you Under the will the will usually says this is the this is my will and final testament of me Faye Woodman I hereby revoke my previous wills and then the third line is I point as my executor A B or C or all of the above now the duties of the executor are really simple and Can be subsumed in three rules The executor has to get the property of the deceased in has to gather all the property and That can be a little more tricky than you'd realize if you're executor and you have a Large extended family or even a small extended family Well, I got to be truthful with you. I never did get that Tiffany lamp that I wanted from my grandmothers so what to do the executor and these families where people run in and out and take a Organize themselves very informally the first thing the executor should do is lock lock the doors and notify the bank You bring in the property and you try to well grandma promised me this when she died. She's died there for all take it now No, not a lot So the executors responsible for gathering in the property then the executors responsible for paying all the debtors of the disease and finally the executor is responsible for transferring what's left after payment of taxes and after Payment of funeral expenses and whatever to whoever it is old like the beneficiaries and the beneficiaries might be directly to a beneficiary or a beneficiary Who's a beneficiary under a trust set up for them? Probate is not always required of a will probate is where the court recognizes legitimacy of the executor that the Will is a valid will and the executor has a right to transfer the property under the estate It is more for the assistance of the executor and some controversial states than most of us so that in small Uncomplicated estates we don't have to probate because probate costs money He knows it's kosher for the first I think it's first four thousand or ten thousand dollars It costs eighty five first ten thousand cost eighty five dollars The first a hundred thousand it costs one thousand dollars and there they're there after that it costs one point six nine five percent and that works out about sixteen dollars per thousand dollars it isn't taxes But it isn't free either so you want to there are ways of avoiding probate and you certainly can if well advised If it's an uncomplicated estate you may not have probate But to the extent that the estate is complicated has real estate Deals with financial institution deals with shares You're probably going to end up probating your state and that's a cost. You'll also end up paying your executor Most wills don't say anything about the pay of the executor and Families are often shocked to understand that one of the siblings who gets to be the executor is paid for his or her work now the executor can Refuse to take the payment or the will can Provide that there shall be no payment, but normally nothing said so the executor will receive up to five percent The gross value of the estate depending on the difficulty of the estate and This money must be reported as taxable income by the executor in many many cases if you're going to inherit If you're the only Beneficial for example, it may makes no sense to take executor fees, but whether several children it may in fact Compensate you for your time and efforts and give you a little more money Well, assuming you have a will how do you revoke a will? marriage revokes it And while divorce doesn't revoke a will It revokes any gifts you made under the will and it revokes the designation of your expose as a Executor under the will separation doesn't revoke a will You can also revoke a will by specifically revoking a will in the new rule will so you say This is a will of me Fay Woodman and you say I hereby revoke all previous all wills and previous testamentary dispositions Finally you can revoke a will by physically destroying a will but you must have the Intention to physically destroy the will and this came up in a funny way in Australian case where the lady carried a will wound in a Wallet tied around her waist and she got caught in a fire and When she was dead the question was was a will revoked because it was around her waist and the court said no Though the will was destroyed It wasn't revoked because she had no intention of revoking that will the fire was an accident this often comes up in the situation where a Testator previously had a will and then somehow at the time of his or her death. It disappears the presumption is That of a will is no longer found on death That the testator has destroyed the will But that presumption can be rebutted and if it is you have a lost will and a lost will Can be provaded it can be used as long as there is either a copy of the will or a credible person who has Knowledge of the intimate details of the will. I just want to briefly talk about Some of the other documents that go with a will The first one is personal care representative of personal care directives under your personal care direct if you sign it it's witnessed Usually do this in a separate document from your will and it does two things one It allows you to to appoint a delicate who will make your personal and medical decisions after you're no longer capable And that's a good thing to do Secondly it allows you to Direct your delicate to do certain things and in that respect. It's very much like what we know as a living will I don't want to be fed if I have these injuries. I don't want to be given the oxygen if I have these Industries if I can't recognize anybody. I don't want it. Whatever Now I've never been in particular favor of Living will I think partly because of shock I received as a young person I was young in those days and I asked my will's class What do they what would they give as instructions in living will and their view seemed to be that once you were over 30 you sort of had it so, you know, bye That's so much I decided to appoint a Delegate but I wasn't going to put any directions in and that the Delegate had to follow if the delicate has no directions a delicate has to act in your best interests whatever that may be Even if you've put detailed instructions of the will if technology or circumstances radically changed the court will not enforce that part of the living will and then again the Delegate will have to refer to your best interest The other thing that I want to talk about is a continuing power of attorney Many of us in our business life Probably have dealt with powers of attorney these are when we're sort of Completely competent. We're working in an ordinary day and we want somebody to represent us or do something on our behalf We may give them a power of attorney So that they can do certain things for you with which ordinarily would require your personal consent or presence There's something now called a continuing power of attorney which gives you rights with respect to another person's property in In in situations where that other person has lost mental capacity In that situation you're able to take over Whatever the personal attorney says you can take over of their Financial affairs. It's a financial affairs thing a power of attorney now when I was working with a Elderly clinic in Ontario a couple of years ago in my exit interview The director the credit asked me what what did I think of powers of attorney because it gives the right to somebody else And that person is called the attorney isn't or she isn't necessary or lower to to essentially do or deal with your financial affairs as As if they were the the person who gave the power of attorney and I said well, I thought the power of attorney was just simply a bomb. I Think you should think that way too Because a power of attorney in Nova Scotia now gives away the keys to the safe. There's no central registry There's very loose supervision of these powers of attorney No reporting climate requirement unless you're forced to buy other relatives So it's a very very loose arrangement Where people do? Can and do take advantage of the senior So my view has always been that if you don't have someone absolutely trustworthy Absolutely someone that you can Will ensure will carry out your best interest and not use as in one case Money to buy a car your money to buy his car Then you shouldn't have a power of attorney, but of course the alternative to a power of attorney For financial affairs a continuing power attorney is guardianship and guardianship has its own humiliating and Expensive aspects for the senior I was involved in a case where the wife The daughter she was a wife and a couple took advantage and remortgaged her mother's house So she could put an addition on her own And I found it very very difficult even to sit in the same room with her but it was really quite interesting because The mother the person who was wrong really wanted to have some contact with her grandchildren and She I think she wanted the mortgage on her house to be taken off maybe But she wanted to do it with as less distress as possible So she continued could continue to have a relationship with your with their grandchildren So I think many many Powers of attorney using correctly are not reported for this reason The problem is it's sometimes very difficult to get into people's minds that a power of attorney Only makes you act as a fiduciary for somebody else. It doesn't give you the money But many people think well mom's gonna die soon and I'm gonna inherit anyway So I'll just take this money and go to Florida or buy an airplane or whatever they want to do Well, that's not your money. It's not the attorney's money It's still mom's money and should be used solely for what she needs and her interests Another thing that comes up is guardianship. What happens to the kids? Well, that's a part of attorney the guardianship is Situation where it's normally dealt within the will because you say I hereby give 100,000 to my daughter Emma age three to be held in trust by so-and-so and so-and-so So there are financial affairs are usually taken care of by trustees in a trust But there's another kind of guardianship and it's a guardianship or the custody of the person and That kind of guardianship is often very controversial particularly where you have a single mom I Recommend that they write the guardianship paper separate from the will at least as far as personal Custody is concerned Many single parents do not want to see the guardianship of the children go after their death to their ex and My answer to that is in the absence of strongly disqualifying behavior the court Will be reluctant for it to go elsewhere so I Can't provide much solace for some single parents who don't want the ex to get Care and custody of a child one other comment. I should say And it's about the body. I Really thought I might talk about this because the situation was ready to bit because I listened to CBC a lot and They're talking about modern ways of burials and one person on the CBC of pine That she Would like to be buried wrapped in a sheet and put in the trees and used the birds user Well, my initial reaction was well the weather just wouldn't do for that here. It may be in the bell But anyway, what I want to say to you is the person who decides on how you get buried In your burial service is your guy is your executor not you well, they'll usually the executor takes some some Count of what you want. It is the guardian. It is not the wife. It is not the parents It is not the children so if you have any unusual ways of Wanting to be buried I suggest you fight it out with your parents with your family before you die Instead of springing it on this happened a lot It was quite unfortunate with some of the soldiers who returned from Kandahar and one particularly notable thing the husband Husband's wife and her parents and his parents fought over where the soldiers should be buried I guess it wasn't an executor in that case. I don't know exactly the details, but that was most unfortunate And finally I want to say that this I think it's been a most suspicious day to give this lecture We all know why I Say that I'm recently retired and I've been elevated by the University to the status of professor emeritus But for people in the know about the substances Substances now being distributed by the liquor commission. It seems that in the future. I'll be able to elevate myself Thank you and we'll stop for a minute and I'll be around for questions