November is Make a Will Month, and the Ontario Bar Association (OBA) said Canadians need to step up to plan for when they’re gone – to help the loved ones they’ll leave behind.
According to a 2023 RBC Royal Trust/National Institute on Ageing report, fewer than half of Canadians (48 per cent) have a will. The numbers are even lower for people aged 35-54, where only about a third do.
On top of that, the study showed that about 35 per cent have appointed a power of attorney.
Local lawyer Brad Langford said the numbers are staggering, adding 43 per cent of couples with children don’t have a will.
“That’s disturbing. It’s really, really important,” he said.
A will gives direction to your wishes after you pass, and can help prevent those you love from having challenging, and potentially expensive, hurdles to leap.
“Unless you have a will, no one is in charge of your property and your estate after you die,” Langford explained. “You end up with this great big gap. No one has the legal authority to deal with any of it.”
Assets, such as vehicles, can just sit and deteriorate. Funds languish in bank accounts, accounts that the banks might just one day take over.
That all changes if you have a will and have assigned power of attorney.
“If you have a will, the executor of the will can talk to people. They can talk to the bank, they can talk to the government,” Langford said. “If you don’t have one, no one is legally able to talk to anybody. You need that someone in charge.”
With no will, someone would have to bring a court application forward to get appointed executor, he added.
“With smaller estates, no one may want to step forward to do that,” Langford said. “You could very well have situations where you have money or assets sitting there and no one to do anything about it.”
He called them “zombie assets.”
It’s not like the government will step forward to handle things, Langford said. It’s not their job.
“If there are assets, they just sit there. No one does the tax return,” he said. “What sometimes happens is, for instance, someone has a $10,000 bank account; it just sits there. Eventually, the bank will just take it.”
Langford said the cost of not having a will far outweighs the cost to sit down with a lawyer and get one completed. The first step is to ask about a particular lawyer’s fee to create your will.
“Most lawyers will give you an idea (of cost) for a relatively simple will – leaving everything to your spouse or kids. If you want to do more, it does end up being more expensive,” he said.
For those with outdated wills – a major change has occurred in your life, such as having children or getting a divorce – Langford recommended updating the document.
“It can get kind of weird. If there’s been a major life change, such as a divorce or a spouse passing away, it’s time to really look at what you have,” he said. “With a divorce, the wills don’t make much sense at all.”
According to the OBA, when there’s a common-law partner, step-children or open-ended family structures, the default rules may not reflect someone’s wishes. Langford said things can get tricky.
“It’s really important that you have a properly drafted will. You could end up with some very unfortunate situations otherwise,” he said.
Langford also recommended steering clear of make-a-will kits, online or in hard copy format.
“I don’t recommend you do those kits because people often try to change them. They may not be happy with the easy answer and may try to do something with the software. If you mess with them, that’s when things can go wrong,” Langford said.
That could lead to the use of phrasing that is subject to multiple ways to be interpreted, including in court.
“That’s a risk. If it is ambiguous, you could end up having to go to court. That’s a disaster,” he said.
This month, the OBA is having lawyers lead estate-planning seminars across the province.
“Every year Make A Will Month mobilizes OBA members provincewide in a shared mission to help Ontarians understand how important having an up-to-date will, prepared with the personalized attention of a lawyer, is to preserving their wishes and preventing unnecessary complications,” said OBA President Katy Commisso in a media release. “These free sessions are about more than providing practical legal information — they’re about community engagement that empowers people to take steps that will truly protect their family, their legacy, and their peace of mind.”
