Today, we will look at the fourth of four real-life estate planning scenarios recently presented to me.
A colleague contacted me seeking advice regarding an estate planning matter for which she was asked to provide legal services. The prospective client is, apparently, a family friend who refuses to have a will professionally prepared by anyone but her. The trouble is that not only is his situation complicated, but her law practice focus is not in estate planning. The story she relayed is cause for concern…
The prospective client, Robert, resides in the Caribbean and has most of his assets there. He has just a few assets in Ontario, one of which is a house that he owns in joint tenancy with his spouse, Abigail. Abigail suffers from Alzheimer’s disease. Robert intends that should he predecease Abigail, his children should hold the house for Abigail until she passes away, and thereafter the house is to be transferred to his children. Unfortunately, this scenario poses a problem in that if Robert should predecease Abigail, his interest in the home will transfer to her by right of survivorship as per the joint tenancy ownership. Thus, the property would not fall into Robert’s estate to be dealt with according to his will. This, in turn, means that Robert’s children could not hold the property in trust for Abigail’s benefit. Abigail, who is already mentally incapacitated, would own the property outright. As a further implication, the house currently could not be sold or mortgaged without Abigail’s consent. As she is incapacitate, her legal representative would have to provide that consent on her behalf and for her benefit. Therefore, an appropriate person(s) would have to seek to be appointed Abigail’s guardian of property, which entails an expensive and time consuming court application process. This could have been avoided if Abigail had executed a power of attorney for property before becoming incapacitated. She will also likely need to have a guardian for personal care appointed, which again, could have been avoided by her executing a power of attorney for personal care. In light of her incapacity, it is too late for Abigail to execute a will or powers of attorney.
My colleague and I briefly went on to discuss the implications of estate planning for individuals with assets in more than one jurisdiction. I eventually convinced her to follow her instincts and resist the pressure from the prospective client to prepare an estate plan for him (the complexities warrant more than just a will) although she wants to help him given the emotional ties to his family.
Thus, this fact scenario teaches the following principle lessons (this list is not exhaustive):
1. Everyone should get powers of attorney in place as soon as possible. Mental illness and incapacity are on the rise in Canada. It can strike suddenly, too, as in the case of a coma from a car accident;
2. One should have a will or multiple wills that cover the jurisdictions in which you have assets; and
3. For one’s estate needs, one should consult a lawyer and other professionals who are well-versed in estate planning and estate administration matters.
If you would like assistance in estate planning for assets in multiple jurisdictions or for loved ones who are incapacitated, please contact Andrea Kelly.
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Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and estate administration matters. She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process. This is quite often enlightening for her clients and facilitates individually tailored services. If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.
