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The importance of the phrase "get it in writing" could not be more relevant than when referring to a will. When the late Terri Schiavo entered into a persistent vegetative state and was unable to speak for herself, her loved ones were involved in a tug-of-war spanning 15 years because there was no "living will" documenting her wishes. What should have been a private matter turned out to be a well-publicized legal battle, resulting in courts supporting her husband's wishes to take her off life support, over those of her parents.
What many people don't know, explains Tom Carter, lawyer and author of the book, Write Your Legal Will in Three Easy Steps (Self-Counsel Press), is that in addition to a will, there are two pre-death planning documents: the Advanced Healthcare Directive and the Enduring Power of Attorney. In essence, drawing up a will allows you to plan for your future -- in life and in death.
What is a will and how often should I write one?
Commonly referred to as The Last Will and Testament, it is a document with powers that are triggered by your death. In it, you express your wishes about what is to happen with your property and any other assets. The document can be held for safekeeping in your lawyer's office, a safety deposit box at your bank or any other secure spot where you feel it can be easily found. A will should be revisited every five years, or whenever there are major changes such as a divorce, marriage, new children, parting of ways, etc., that would prompt an adjustment to be made to your will. In this case, a Codicil (change document) can be completed, rather than writing a new will from scratch.
Who will be in charge of your healthcare in case of a medical crisis?
Advanced Healthcare Directive: This is known as the Living Will in the United States. In Canada the generic term is Advanced Healthcare Directive. This is a personal care, pre-death document and varies in name depending on province. In Ontario it is called Power of Attorney for Personal Care, in British Columbia, a Representation Agreement, and in Alberta it is called Personal Directive. This document's powers are triggered by an incapacity caused by an unforeseen health crisis such as a stroke, heart attack, accident, Alzheimer's, or any other mental or physical disability that deems you unable to make decisions about your personal care and healthcare. In this document you designate who you would like to make important decisions concerning your medication, hospitalization, living arrangements. The document also includes specific instructions that describe your wishes to be -- or to not be -- kept alive by any artificial or mechanical means, such as a ventilator or feeding tube or by any life-support equipment or other heroic measures.
Who will manage your finances if you are unable to?
Enduring Power of Attorney: This document's powers are triggered during life by an incapacity caused by an unforeseen health crisis such as a stroke, heart attack, accident, Alzheimer's, or any other mental or physical disability that deems you unable to make decisions concerning your financial management. In this document you designate whom you would like to manage your financial affairs. Again, this document goes under a different name depending on which province you live in. In Ontario, for instance, it is called Continuing Power of Attorney for Property, in Alberta, Enduring Power of Attorney.
Who should write a will?
Once you've reached the age of majority and own significant assets you can draw up a will. You can write a will earlier if you are on active duty with the armed forces at a younger age or if you are married before the age of majority. The same applies for both pre-death documents. Without a will, the Intestate Succession Act kicks in. This law dictates to whom your assets and property will go. If you have no heirs, your estate (all of your assets) goes to the government.
Should you consult a lawyer?
You may decide to use a will kit, without the help of a lawyer. Saul Paton, a Toronto-based lawyer with the Elkind, Lipton & Jacobs firm warns that while will kits are perfectly legal, the "one size fits all" model may not accommodate your needs. You may have a unique set of circumstances, for which an example is not included in a will kit, that requires tailor-made provisions with the help of a lawyer.
Another potential barrier to using a kit is deciphering the legal language. While most will kits set out proper requirements, says Paton, the legality of your will ultimately hinges on the person's ability to follow the kit's instructions. Some people may feel more confident about the validity of their will after showing the completed document to a lawyer.
How much could this all cost?
Consulting a lawyer could cost $200 to $2,000 depending on the complexity of your will, while purchasing a will kit online or at a retail outlet could cost anywhere from $15 to $40.
Another option in several provinces is a holograph will that is composed, hand-written and signed by the owner of the will; and costs absolutely nothing. No witnesses are necessary. Paton recounts a story told by his law professor: There was a farmer in the prairies who, when pinned under his tractor, wrote his final words "all to the wife [sic*]." The court upheld it as a valid holograph will.
*Paton refers to the case of Cecil George Harris, a Saskatchewan farmer who was pinned under his tractor for over nine hours on June 8, 1948. With a knife, Harris scratched the words: "In case I die in this mess, I leave all to the wife. Cecil Harris" on the tractor's fender. He died from his injuries. The court considered the words written on the fender as a valid holograph will.