All About Estates

Eighteen (18) – Capacity to Make a Will, but will you?

This blog has been co-written by Sandra Arsenault, Law Clerk at Fasken LLP and Kassandra Douglas, Durham College Law Clerk Co-op Student at Fasken LLP

At 18 years of age, you are allowed to vote in Canada, and chances are, you have had exposure to politics growing up. You likely have some knowledge of how to vote and what to base your vote on. But did you know, at 18, you are also legally able to  write a will or be an executor of an estate? Or, if someone has died intestate (without a will) and you are entitled to inherit money from their estate, did you know that the Court must release all funds being held for you upon attaining the age of 18?

It seems unlikely that you have had exposure to estate planning and succession by the time you are 18, unless you have been involved in an estate through misfortune early in life.

What does someone who has only just reached the age of capacity know about wills & estates? Is it important for an 18 year old to have knowledge of such matters?

Kassandra Douglas, a co-op student completing Durham College’s law clerk program, joined me at Fasken to learn about wills and estates law. She shares her unique and youthful perspective below:

As an 18 year old and a first year student at Durham College, I have never been exposed to the stress of will planning or being an executor. Working with the Trusts, Wills and Estates group at Fasken (even though it was only 2 weeks) really opened my eyes and got me thinking.

When I turned 18, being able to do a will or be an executor never came to mind. I never really thought about it. I always knew that I eventually was going to make my own will but with the very little assets I have right now, it’s not at the top of my to-do list. However, I am now thinking about it seriously. When I say thinking about it seriously I mean generally, like what assets do I have and who would I want to appoint as my executors.

I have never even had that conversation with my parents or other family members because I just assumed they don’t want to talk about it. I also assumed whoever the executor is will find out after they pass away which, now thinking about it, is a misguided assumption, in my view.

I always planned to do a will when I got older because I have always thought that only people with children do wills and everything they have is spilt up equally.  I now appreciate that this assumption is completely wrong. With my exposure to different wills I now see you could appoint anyone as executor or leave gifts to co-workers, friends or really anybody that isn’t immediate family (I know this probably isn’t shocking but to me it was). Another thing that surprised me was how many beneficiaries a will can potentially actually have. Somehow I believed there would be a limit to how many people could inherit but after working on a will with 20 beneficiaries,  I realized my belief was wrong… again. I even got the opportunity to witness a will signing which I never have done before (I was pretty nervous thinking it would be a lot of confusion) but thankfully it was essentially just a lot of signatures and initials on every page.

When I started with the group, I didn’t know what to expect. I had been exposed to other areas of law in my rotation and schooling but not Trusts or Wills or Estates.

But to quickly summarize my 2 week rotation it made me realize 3 things:

  1. Every day/file is different;
  2. Finding information may be like a treasure map; and
  3. There are A LOT of different letters.

Every day I was given a new file or a new letter, raising matters with me I haven’t even learnt about in school yet.   Even though these things may seem overwhelming and confusing, I had a great support system to help. But for some reason I assumed that there would be slow days, very few letters, and all the information to include in those letters was very clear and well known but I was wrong once again!

I appreciate that this blog may make me sound ignorant and/or uneducated.  Until diving into wills and estates, I was.  These are not conversations one typically has with family and friends; even if they are, they may be awkward or upsetting. While I may not be rushing out to write my will, the exposure I have to wills and estates has made me feel less intimidated about starting the process.

Conclusion:

Kassandra’s limited knowledge about wills and estates makes me wonder if this is a life skill that is overlooked in the current school system. Perhaps an introduction to the terms and basic laws should be added as a component somewhere. If the concepts were introduced sometime before graduation and young adults were encouraged to have a dialogue about these topics with their families, maybe we would have fewer intestacies, fewer upsetting surprises on death, better communication and planning, and ultimately fewer litigious estates? Is this really only something a person should learn about after having kids, as Kassandra had assumed? And what if a person does not have children, at what point in life does this become an important topic to consider?  I truly believe knowledge is powerful and a way to make this topic less scary is to encourage dialogue about it.

If upon reading this blog you are over the age of 18 years and are inspired to learn more, here are some ways you can educate yourself on this important topic:

  • Book a consultation with a knowledgeable Wills and Estates lawyer to obtain a personalized Estate plan (highly recommended);
  • Seek out or organize an information session within your community or an online community you may be actively involved in;
  • Attend an Ontario Bar Association (OBA) public seminar in November this year in connection with the OBA’s Make a Will Month campaign. Their website here has session dates and a number of helpful resources;
  • Review the Law Society of Ontario public resources in connection with Wills and Estates here;
  • Browse through the information provided by the Ontario government with respect to administering estates at this link;
  • Subscribe and read the daily articles on the All About Estates Blog;
  • Start small by having a conversation with a trusted friend or family member. Simply asking someone if they have a will or if they know someone who can help you make a will can be a good conversation starter;
  • Use this helpful trick when the task feels daunting or overwhelming: consider hiring a lawyer to make a “temporary” Will and Powers of Attorney for Personal Care and Property. This way you have legal documents in place and you can return to the same professional to easily amend or update your documents as needed. This is particularly important if you have kids, property, business interests, or pending travel plans and the fear of estate planning has caused you to put it off longer than you should;
  • Avoid intestacy (dying without a will) which is governed by Part II of the Succession Law Reform Act in Ontario by committing to one of the steps above;
  • Share this information with someone you think it might help; and
  • Bookmark this article for future reference.

Thank you for reading! Enjoy your long weekend!

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About Fasken
Fasken is a full-service law firm with offices in Canada, the U.K., South Africa and China. We work with clients around the globe, advising on legal issues affecting all types of industry, government and individual objectives.

1 Comment

  1. Harold M Haynes

    August 2, 2022 - 1:14 am
    Reply

    Would be interested to see a piece focusing on the importance of POA (property and personal care) for young adults as well. This piece is good. A piece on the relevance of POA to a young adult may be more relevant given they may be driving; be working; have student loans, etc.

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