You can’t take it with you. John Cleese, of Monty Python fame, who also studied to become a lawyer (lawyer and comedian seem closely related occupations some days), notes that willpower is doing something you are not at all interested in. Having the power of a will is also something most Canadians are either not at all interested in or, more likely, there is some hurdle to ensuring this paperwork is in order.
The Angus Reid Institute states it is Canada’s Non-Profit Foundation Committed to Independent Research. When they looked into this issue of Canadians and their estate planning, they found that most Canadians (51%) don’t have a will (with women being even less likely to have one), and another 15% don’t have an updated one. One-quarter of them say they are too young to worry about it.
There is actually a trilogy of records you should have – your will deals with your family and property after you die. While you are alive, a personal health directive can give your friends and family direction on your wishes if something should happen to you where you cannot make your own decisions. In addition, a power of attorney can deal with other issues that might arise while you are alive and need someone else to make decisions or take steps on your behalf regarding your property and financial affairs.
I did not get around to preparing mine (guilty!) until I was pregnant with my first daughter, or maybe she was already born, and my own mortality and relevance became apparent. At my firm, I am not one of our team that prepares wills. I recall preparing one while an articling student to make sure I had some well-rounded experience, even though I was in the litigation department of my then firm. As a litigator, I come in at the other end, when things do not go smoothly, you’ve left it all behind, and litigation can become an issue for your issue (offspring). Even if you have a will in place, your capacity at the time can be challenged. There may also be a concern that you were unduly influenced by a family member or caregiver that, for instance, gets everything you leave. A lawyer’s responsibility includes being aware of these potential challenges and avoiding them.
One of my most memorable early estate litigation cases involved two brothers whose mother had passed away. I do not recall all the details but I recall we could not negotiate a settlement and ended up in court. On the court date, to my surprise, one brother arrived with a vacuum cleaner which had belonged to his mother. The other brother arrived carrying a long, beautiful beaver fur coat she had owned. Neither looked like vacuuming or fashion was a relevant concern. I know I did not ask my client to bring any assets to court so not sure how BOTH brought in items in dispute. The justice was very respectful and even prepared a written decision dealing with the assets once and for all to settle this familial dispute.
Remember to take care of business, including your personal business. If you get the chance, stop by our booth at the Farmer’s Market (The Market at Red Deer) at their new Red Deer Polytechnic home on Saturdays as we are conducting our own survey to gather the data to determine the pain points preventing Canadians from planning for that end of life. Plan for the worst and hope for the best.
Donna Purcell, K.C., (aka Lady Justice) is a Central Alberta lawyer and Chief Innovation Officer with Donna Purcell QC Law. If you have legal questions, contact [email protected].