As a lawyer who has worked in the field of Wills and Estates for the last three years, I get the following question quite a bit: When is it too late to make or change my Will? Hopefully, I can help alleviate some stress by providing an answer to that question.
There seems to be a belief out there that age can disqualify you from making your Will, or even just changing it. In reality, it’s not exactly your age that can hinder you from making a Will (unless you’re under 18, of course!); rather, it’s your capacity. If you still have the mental capacity to make a Will, a qualified lawyer should be able to discuss drafting one for you. Generally, to have mental capacity, you must be able to prove the following:
- That you have knowledge of the nature of the Will and its effects on your Estate;
- That you have general knowledge and understanding of your assets and liabilities;
- That you understand any and all potential claims that might be made against the Estate (by beneficiaries who were added in or left out of your Will);
- And that you do not show signs of any mental illness that may impact the terms of your Will.
Sometimes, however, a lawyer believes that the answers they received for the points above were not cut and dry for a specific person, and so they may recommend that you undergo a capacity assessment. Lawyers by nature tend to be a cautious lot, and so even if you believe you don’t need one, they may not be able to proceed with drafting your Will without an assessment. This may be time consuming to arrange and it is not free, however it might be the best money you will spend. The lawyer’s job is to ensure that your wishes are freely given and that you have the requisite capacity to provide those instructions. Should a disgruntled beneficiary challenge your Will, alleging that you lacked the capacity to have made it, a capacity assessment (confirming that you did have the necessary capacity at the time the Will was made) will be instrumental in defending your Will.
The same applies for a Codicil (amending document attached to your Will that changes, adds to, or removes a provision previously in your Will) and similar guidelines apply for the ability to create Powers of Attorneys. There are two types of Powers of Attorneys in Ontario that are most typically used: a Continuing Power of Attorney for Property (which includes real estate as well as finances), and a Power of Attorney for Personal Care (which deals with decisions regarding health and related issues). The standards for being capable to create the two Powers of Attorneys are different from each other and from the standard to make a Will. To have Mental Capacity to make a Power of Attorney for Property, you must be able to prove:
- That you have general knowledge and understanding of your assets and liabilities;
- You are aware of any obligations for any dependents you may have;
- You are aware of the powers you are providing to the person you are naming as your Attorney;
- You are aware that you have the right to revoke your Power of Attorney;
- You are aware that there is always the possibility that your Attorney could misuse/abuse the powers given to them;
- You are aware that the Attorney must account for his/her dealings with your property;
- And finally, you are aware that there is the possibility of your property declining in value, even if managed well by the named Attorney.
When it comes to a Power of Attorney for Personal Care, things are a bit more straightforward. To have mental capacity to create such a document, you must be able to prove the following:
- You have a genuine belief that the Attorney you’re naming has a genuine concern for your welfare;
- You understand that the named Attorney may have to make decisions regarding your health, and potentially your life, on your behalf.
These rules may seem to be harsh to some, or even overly restrictive, but they are in place to ensure your Estate is safeguarded against undue influence, from yourself and others. Each test is time and task specific and you may have capacity to make a power of attorney for care but not a will.
Even though you don’t want to think about it, you never know when it may be too late to make a Will. This is why lawyers always recommend you do your Estate planning in the present and update it on a regular basis as required by your circumstances.
This blog post was written by Ariel Fried, a member of the Wills and Estates team. He can be reached at 613-566-2067 or at ariel.fried@mannlawyers.com.
