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Helping Your Son or Daughter Write a Will

By: Halldor K. Bjarnason, Lawyer

I am regularly asked by parents to help them write a Will for their son or daughter with an intellectual disability.  There are few certainties in life, besides death and taxes.  However, in Canada there’s a third certainty – you cannot write a Will for another person, pure and simple.

It doesn’t matter whether you have a representation agreement for the person, a power of attorney, or even a Committeeship, as executing Will is deemed to be a personal action – like marriage – you can’t do it on someone else’s behalf.

In order for a person to do a Will, he or she must be able to do three key things:

  1. Understand the nature of the document (ie. “it’s a piece of paper which describes who gets my stuff when I die”.  Which includes the related question – what does it mean to “die”.);

  1. Appreciate the nature of your financial/moral obligations (ie. “I have a son and a daughter.  My son is four years old and is completely dependant on me.  I have a legal obligation to support him.  My daughter is 22 years old, has a decent job, and I don’t help her financially anymore – she survives on her own.”); and

  1. Appreciate the nature of your finances (ie. “I have a house worth about $400K, a mortgage of about $120K, and about $600 in my bank account.”)

If a person is not able to appreciate these three things, they are not deemed to have “testamentary capacity”.  As a result, they’re not legally capable of making a Will.  Curiously, a person can be completely delusional – absolutely convinced that he IS the disposed King of England – but as long as he knows that the paper he is signing will give all of his stuff to his spouse when he dies, knows he has two grown, independent children, and knows he co-owns a $570K condo, has no mortgage, and has $3500 in the bank, he can make a Will.

Without a Will, property is distributed according to the Estate Administration Act.  The EAA states that first, it goes to the person’s spouse.  If there is a spouse and natural or adopted children, the first $65K goes to the spouse, the remainder is divided between the spouse and the children.).  If no spouse, then to the children.  If no children, to the parents.  No parents, to the brothers and sisters.  No siblings, to nieces and nephews. . . and onwards.

This can create a significant problem when a person has significant assets – such as a home in their own name – and no testamentary capacity.

My question in this situation is – if your son doesn’t have the capacity to make a Will, how does he have the capacity to sign the property transfer documents if his house needs to be sold?  It could be a significant issue if there is a need to sell the house in the future.

If your son doesn’t have the capacity to make a will, the only way to avoid the above statutory scheme is to have the asset in a trust, with a named residual beneficiary (someone who gets the remains of the trust when your son passes on).  Unfortunately, if the home is already registered in his name, it is usually a bit late to get it into a trust!

Please note that this article is provided for general information only.  As specific facts affect how the law is applied to your circumstances, it is always wise to get the advice of competent legal counsel.

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