Introduction
This brochure outlines matters to be considered by you in providing instructions to us on the preparation of your will and summarizes some important will provisions.

What is a Will?
A Will is a written document which provides for the disposition of your property upon your death. A Will comes into effect only upon your death. A codicil is a written document which amends your Will.

A Will is an important legal document as it can assist in the orderly conduct of your business and financial affairs after your death. It will ensure that your final intentions are carried out. For example, without a Will, your property will be divided amongst immediate family members in specified proportions set out by law. These proportions are subject to the claims of dependents who may not be adequately provided for by law and are also subject to the claim of a surviving spouse under the Family Law Act. The division and method of distribution may not be what you intended and may not meet the needs of your family. In addition, distribution of your estate is likely to be slower and more expensive than if there is a Will. Another example is that by law, minor children will receive their share of your estate at the age of 18. Many people prefer to put in their Wills that their children or grandchildren should not receive their share until a later age, such as 21 or 25 years of age.

Executors
The executor is the person named in your Will to carry out your instructions. The executor acts in a trustee position and must fully account for all monies and assets. Anyone who is eighteen years of age or over and of sound mind can act as an executor. A beneficiary can be an executor under a Will. It is possible to have more than one executor or to have alternate executors.

Executors should reside in Ontario to avoid the additional costs of obtaining a fidelity bond. In choosing executors you should not select a person who may have a possible conflict between their responsibilities and their personal wishes. You should obtain the consent of your proposed executors to ensure that they will agree to act on your behalf.

Disposition of Property
Any property held in joint tenancy (for example, a family home) will automatically pass to the surviving joint owner. The Will of the joint owner who dies first will have no effect on such property.

With certain exceptions, you can dispose of property by Will in any way that you wish. Care must be taken to adequately provide for dependents in the Will or else a dependent may attempt to claim a share of your estate. If a surviving spouse claims that they are not adequately provided for under the Will, they may use the Family Law Act to claim an amount, and thus vary the effect of the Will. In addition, you may have entered into agreements during your lifetime which may restrict the disposition of your property.

Young Children
Wills prepared by this firm usually make provision for the appointment of guardians of infant children. While such a provision is not binding on the courts, your wishes as specified in your Will carry great weight. If your children are of an adequate age, we recommend that the selection of a guardian be discussed with your children. We further recommend that the guardian appointed under your Will should not be the same person as an executor to prevent any possible conflict of interest.

In our experience, most clients wish to create a trust for the benefit of their infant children for educational and other purposes. The executor will act as trustee and hold the child's or children's share, paying income and a portion of the capital of the fund as may be required from time to time for the benefit of the child. The age when the child is to receive his or her share will be stated in the Will. Alternatively, it is possible to provide that a child's share will be paid out in increments at certain specified ages, such as one-third distributions at the ages of 18, 21 and 25.

Families with young children should consider the possibility of the entire family being killed in a catastrophic accident. In such circumstances, many clients elect to distribute their shares in certain specified proportions to other family members, charities or friends.

General Comments
A Will is not an appropriate document to specify funeral arrangements and anatomical gifts as it is often not reviewed until after the deceased is buried. It is therefore preferable to deal with these matters in other ways, such as discussing funeral arrangements with family members and the executor, and providing for anatomical gifts by completing the relevant portion of your Ontario Drivers Licence.

We also recommend that a provision be included in your Will which leaves certain named items to specific people in accordance with a handwritten note or memo which you may subsequently prepare and leave with your Will. This allows you to ensure that items of a sentimental value are directed to specific people. You can amend this supplementary memo without the expense of amending your entire Will.

In Ontario, a Will is revoked by marriage unless the Will is stated to be in contemplation of the particular marriage. Unless a contrary intention is expressed, a divorce will revoke the provisions in a Will in favour of a former spouse.

Amending a Will
You can revoke your Will at any time as long as you have the mental capacity. Certain minor changes to a Will can be undertaken by a codicil to a Will without redrafting the entire Will.

Wills are drafted based on your present circumstances, with a view to making appropriate provisions for the future. However, circumstances do change. Accordingly, we recommend that a Will be reviewed every few years or more often if there has been a material change in circumstances such as a birth, death, marriage or divorce or if an executor or guardian has died or moved out of Ontario.

Conclusion
Wills are important legal documents and should be prepared after careful consideration. In our opinion, the cost of preparing a Will is greatly exceeded by the enhanced peace of mind from knowing that your affairs will be dealt in a quick and cost effective manner after you die. In the grieving period after a death, this may be one of the most important legacies that you leave.

Your choice of legal counsel is a critical and personal decision. The firm you select should be committed to your business and personal needs.

Since 1922, Pavey, Law, Wannop & Witteveen LLP has been providing its clients - large and small - with quality legal advice and services. Our purpose as a firm is twofold - to assist our business clients in the successful performance of their business, and to provide our individual clients with peace of mind through sound, understandable advice and advocacy.

We are a results-oriented firm. Our business clients receive our superior legal counsel that is practical, and guided as much by the potential impact on their businesses as by the law.

Equally, our individual clients are treated with respect and receive clear legal advice geared to resolve issues and find solutions.

For all of our clients, Pavey, Law, Wannop & Witteveen LLP is committed to delivering superior representation in a prompt, efficient and cost effective manner.