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What Makes a Will Valid?

Disclaimer: This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Movies and TV shows like to present final wishes dramatically, whether it is a recorded video or a deathbed utterance. However, what makes a person’s wishes legally valid?

You may be asking that question because you may be embarking on your own estate planning. You may be considering a will kit or another option and wonder if it will be deemed valid by the courts.

Alternatively, you may be handling someone’s estate. The first step in executing a deceased person’s wishes is locating a will and ensuring it is valid.  It is a crucial question: if the will is valid, then the distribution of the estate can move forward.  If not, then other steps must be taken.

What standards must a will in Ontario meet? Estate law is governed primarily by the Succession Law Reform Act, which sets out the requirements for making a legally valid will.

This article will go through these requirements, including the requirements for a handwritten or holograph will (note that there is no such thing as a holograph power of attorney in Ontario). Finally, we will outline why you should seek more than the bare minimum in terms of a will.

Requirements for a valid and legal will in Ontario

In order for a will to be valid, the following must be true:

  • It must be written in a physical form.  What does that mean? It means that there must be a physical, hard copy, and not simply in a digital or online format. 
  • The testator (the person making the will) must be over the age of majority, unless they are married, have children, or are members of the armed forces.
  • The testator must be of sound mind.
  • There must be witnesses to the testator signing the will unless it is a holograph will (which we will discuss further in this article). There are specific requirements as to who can witness a will being signed. It cannot be any of the following individuals:
    • any beneficiary or his/her spouse
    • the person named as executor or his/her spouse
  • Previously, the testator and two witnesses needed to be in the same physical location while the will was signed. However, due to COVID-19, those requirements have changed. Virtual witnessing is possible if one of the witnesses is a licensed lawyer or paralegal.  There are other requirements, such as confirming that all parties can hear and see each other. Additionally, the testator and witnesses must all sign identical copies of the will. These counterparts together will form your legal will. 
  • The signatures must appear at the very end of the will.

What if I find a handwritten will? Is it valid?

On occasion, someone will find a handwritten will amongst their loved one’s belongings and may wonder if it is valid. This is referred to as a holograph will, and like all wills, it must be in a physical format.

A holograph will does not require witnesses and only needs to be signed by the testator.

There are other requirements to be considered. A holograph will must:

  • be entirely in the testator’s handwriting. This means that even documents referenced by the holograph will are not considered part of the will if they are typewritten. 
  • be a “full and final expression of intention as to the disposal of property upon death.” This means that it must be clear that the document was not meant to be a draft.

It is the responsibility of the person seeking to have a holograph will deemed valid to prove that it was written by the testator and that it was a final, full expression of the testator’s intentions.

If the will is deemed invalid, then the estate will be handled according to the previous will or, in the absence of a previous valid will, as per Ontario’s intestacy laws. 

Even if it is deemed to be a valid holograph will, there may be court orders that are needed in order to authorize the executor to take certain steps with the estate’s assets.  These court orders would not have been necessary had the deceased person had a well-drafted will in place, prepared by an experienced estate lawyer such as either of those at Beeksma Law.

More than the minimum

The requirements noted above are the bare minimum of what is required for a will to be valid. However, to fully protect your loved ones and your wishes, you need more than the bare minimum.

There are many provisions not required by law that are simply good practice. For example, we previously spoke about the role of an executor. While you are not required to name an executor, it is undoubtedly in your best interests to appoint someone to handle your affairs.

In the absence of that provision in your will, the courts will be called upon to appoint someone for that role. This process will delay your assets being distributed and your beneficiaries being able to move forward.

Of course, the more complex your life is, the more you will benefit from having professional legal advice about your estate planning.  A seasoned lawyer will be able to spot areas that should be addressed before you pass, in order to save your surviving family the trouble of time-consuming and expensive legal disputes.

At Beeksma Law, we have a wide breadth of experience in estate planning and litigation. Our high degree of skill means that we can provide you with quality legal advice to take care of your affairs while you’re still around to appreciate it!

We also pride ourselves on preventing issues instead of just reacting to them. We can also help you limit any disputes after you pass and ensure that your affairs are dealt with as quickly and painlessly as possible.

Reach out to our team for a free consultation by clicking here. We would be more than happy to discuss your needs with you.

What You Need to Know When Choosing Your Executor

Disclaimer: This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Planning your estate involves many vital decisions, but few are as important as selecting your executor. Your executor is the person who is responsible for overseeing your estate, and in some cases dealing with your assets.

They must make sure that the will is executed correctly and do so in a timely fashion, which can be challenging if they are the executor for more than one person. The executor also needs to deal with legal matters such as taxes, liabilities, and debts.

Clearly, it is a heavy responsibility, so you want to select that person only after careful consideration.

To help you out with this process, we’ve compiled some tips on how to pick the right executor for your estate!

Do you have to choose an executor?

Short answer: no. A will is perfectly valid without one. However, should you? Unequivocally, yes!

Basically, without a will, no one can control your estate. Therefore, your beneficiaries would need to wait for the court to appoint an executor in the event that you do not name one.  Whenever the court has to be involved, you are looking at added costs in terms of legal fees and time for your estate.  Therefore, by not choosing an executor, you are causing your estate to lose unnecessary money in additional, and avoidable, legal fees because the court now has to appoint an executor.

What will your executor do?

The executor’s obligation is to the estate’s creditors and the beneficiaries. Let’s briefly discuss in broad strokes what an executor’s responsibilities are. An executor is responsible for:

  • Making funeral arrangements
  • Taking possession of your property and assets
  • Determining the value and managing the distribution of those items according to your will
  • Applying for probate
  • Preparing an accounting of the estate assets
  • Filing the tax returns and applying for the Certificate of Clearance
  • Paying off any debts or taxes owed by your estate before distributing remaining assets

An executor must keep accurate and complete records and receipts to satisfy the court and the beneficiaries that it has fulfilled its responsibilities. An executor’s job is a massive undertaking and a significant time investment. Generally speaking, an executor will work on an estate for a minimum of 1-2 years following your death.

Who can be your executor?

In Ontario, executors must be at least 18 years of age and have the capacity to act.

That means that your executor does not need to be related to you, although they certainly can be. As well, your executor is not required to live in Ontario (or even Canada), although it is undoubtedly more straightforward if they do.  Additionally, if the executor does not live in Ontario, then the Court will often require them to post an administration bond (which is equal to double the value of the assets of the estate).  It can either be paid into court by the executor personally or obtained from an insurance company that issues policies for administration bonds.

You also can choose more than one executor – although you must make sure that your co-executors get along!They will have to make all decisions together and sign off on all estate documents together. If there is friction between your co-executors now, then the heavy responsibility of handling your estate will certainly not make that relationship smoother.

In addition to executors, you would be wise to name a backup executor. This executor will become the executor if your first choice is unable or unwilling to serve as executor for any reason (for example, if they pass away before you).

If there are no co-executors and the only named executor dies before your passing, then it would be up to the courts to name the executor – which could take extra time and will certainly cost your estate more money.

Choosing an Executor

Now that you know who can be an executor, there are some other considerations as to how to choose the one that is right for you.

Trustworthy

The most important advice that we can give is to choose someone that you trust; implicitly and fully trust.

The person you select to be your executor will have a lot of leeway for your assets. For example, they can determine how much will go towards things like funeral costs and outstanding bills before being distributed among the beneficiaries of your estate.

That executor may also have some leeway in what happens with certain assets within the estate after death. For example, they might be able to make decisions about items not explicitly marked in your will.

It would be best if you were sure that you could trust this executor with all of your estate—and the life and future of whoever might inherit it.

Willing and Able

Being an executor is a significant responsibility and one that is time-consuming. Ensure that whoever you select as your executor has the time and energy to dedicate to completing all the tasks that are needed. If you have an executor in mind who doesn’t live near your estate or has too many other responsibilities, then it would be wise to select another executor.

Taking the time to find an executor capable of handling all tasks and making decisions will save headaches later on after death.

Impartial

You may select a trustworthy executor; however, you may be putting them in a difficult situation by asking them to execute specific duties.

For example, you may name your new spouse as your executor. However, that might create conflict in blended families and cause friction with surviving children from a previous relationship.

Think carefully about who could be objective in carrying out your final wishes, especially if you have a complicated estate or family situation.

Naming Your Executor

Given the level of commitment required to being an executor of your estate, you will first want to ask the person you choose. That is not something that you want your executor to discover after you pass.

Next, make sure it is included in your current will and estate documentation.

Finally, give thought to whether that needs to change from time to time. That person may have been willing and able to at the time, but is that still true?

Additionally, certain life events should trigger you to consider whether a change is needed. Have you gotten remarried? Are your children now adults? Have you or your executor moved to a different province or country?

Have you obtained assets in a different country? Have you started a business that has begun to grow and find success? These are all times that should cause you to pause and consider whether a change in your executor is warranted.

The Beeksma Law Advantage

At Beeksma Law, we understand that thinking about the end of your life is not a pleasant task. However, the more planning you do today, the easier the process will be on your surviving family.

Our team looks at your life, family, and assets to help you arrange an estate plan that best serves you.

If you would like to speak more about your estate plan, then book a free consultation today. Our team would be happy to connect with you.

Top 7 Questions Asked By New Entrepreneurs

Disclaimer: This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

If you are starting a business in Ontario, welcome and congratulations! It is so exciting to see people take their passion and ideas and build a business.

We’re sure you have done a lot of planning and preparation to get you to this point, including market research and deciding on your business name. You have a strong idea of your product or service and how you are going to bring it to market.

However, you may also be feeling a little overwhelmed with the legal side of things. You may be getting conflicting advice and having a hard time sorting out what you need to do to protect this wonderful business you are creating.

In this article, we will answer your frequently asked questions and help you find peace of mind as you embark on your journey into entrepreneurship!

Question #1: What kind of business structures can I choose from?

Assuming you are a for-profit business, you have five choices: a sole proprietorship, a partnership, a joint venture, a limited liability partnership, and a corporation.

A sole proprietorship is a business owned and run by one individual with no distinction from the owner. It’s easy to start, but your personal assets are exposed in the event of a lawsuit.

Partnerships have two or more owners who contribute their capital and/or skills for a share of profits without being taxed as a unique entity.  They also share in the liabilities of the partnership.

Joint ventures are two or more people who come together to collaborate on a project. They may contribute their capital and/or skills with an agreement that allows them to keep their profits and liabilities separate.

Limited liability partnerships are a combination of a partnership and the tax benefits of a corporation. They are limited to certain professions, such as lawyers and accountants.

Finally, a corporation is a distinct legal entity that is owned by the shareholders. It can sue and be sued, as well as purchase and sell property. The shareholders are not personally liable for the corporation’s debts or liabilities except to the extent of their investment in stock.

Question #2: Do I need to register my business name?

In Ontario, you need to register your business name if you are doing business as anything besides your legal name.

Fortunately, applying for a master business licence is a fairly easy process and can be done online. You’ll want to first do a search to make sure that your name is not already being used.

Master business licences are valid for five years, so once you register yours, be sure to mark the date that it will need to be renewed.

Question #3 – Should I incorporate right away?

We devoted an entire blog to this question, but here is the short answer: maybe.

It is not always necessary to incorporate your business right away, and it would be wise to weigh the pros and cons. On one hand, you are limiting your own personal liability and may be in line for some tax benefits. On the other hand, incorporating incurs extra expenses and requires additional paperwork to be filed annually.

If you do decide to incorporate, you’re going to want to involve a lawyer in the process. A skilled lawyer will be able to ensure that your Articles of Incorporation not only serve your needs today, but will continue to do so down the road.

Question #4 – What contracts do I need?

It will, of course, depend on your business but some contracts that a new business may need include a service contract, employment contract, lease, and non-disclosure agreement.

If you opt to form a partnership, then a key contract that you will need is a partnership agreement setting out how your business will be run. Similarly with a joint venture, you will need a joint venture agreement.

You also need to consider your website and online presence. If you’re collecting people’s personal information, do you have a privacy policy in place? Does your website have terms and conditions? You will want those pieces in place and ensure that they comply with the current legislation.

Question #5 – Do I really need contracts in place?

Yes.

Question #6 – Do I need a contract if I’m doing business with my brother, mother, best friend, etc.?

Yes.

Having contracts in place protects your business and your relationships. Memories can fade and what was agreed upon in an oral conversation can be remembered differently years later.

A contract will clearly spell out the terms and conditions of the agreement for both parties, as well as establish remedies if those terms are not met. Having expectations clearly spelled out will minimize disagreements and prevent misunderstandings from becoming a larger issue. 

Question #7 – Can I use online templates?

You can, but even then you will want a lawyer to review them. It is hard to know if online templates are accurate and if they fit your business needs.  

In particular, a common issue that we see is a client who has downloaded a template that is not even drafted for Ontario, let alone Canada (e.g. American templates).  That kind of template is virtually useless to you, which is another reason why you need to have a lawyer involved.

As well, we recently were approached by someone who had been using an online template. With changes in her business, there were areas where her contract was unclear and it was negatively affecting her business.

Discussing your contracts with a lawyer will ensure that your contract fits your needs and covers the terms that are important to you. As well, an experienced business lawyer will see gaps that you may not even realize are there! 

A well-drafted and comprehensive contract will help protect you, but it is only as good as the person who wrote it. Having a lawyer draft your contracts can give you peace of mind that someone else has taken care of looking out for your best interests.

Where can I find advice that I can trust? 

From Beeksma Law, of course! 

At Beeksma Law, we have extensive experience helping entrepreneurs build strong legal foundations for their businesses. We are actively involved in the business community in Ontario and are driven to help others succeed. 

If you would like to learn more about how you can get your business started off on the right foot, then book a call with us today. Our team would be more than happy to discuss your business needs. 

Frequently Asked Questions About Your First Home

Disclaimer: This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Congratulations!  This is a big step, so let’s take a moment to celebrate it!  Finally, after all the saving and planning, the offers, and discussions with your realtor, you are buying your first home.

However, now you may have many questions about the next steps that are ahead of you. For example, how can you ensure a smooth closing?

Let’s go through some of the questions that our clients frequently ask so you can feel confident and prepared between now and when you move into your new home.

Do I need title insurance?

This is a question that we are asked all the time, and the answer is an unequivocal yes!

Title insurance is technically not a requirement for homeownership, but we cannot recommend it strongly enough.  In fact, many lenders will require that title insurance be purchased before funding a mortgage.

What is title insurance? It guarantees that the person selling your home has clear legal ownership and will transfer this to you. In addition, if there is a problem with the title that ends up as a registration on title after closing, such as a lien for unpaid property taxes or unpaid utilities, then the policy protects you against any financial loss.

Title insurance will also protect you in most cases if there are disputes with your neighbour as to the property line.

What is title fraud (or title theft)?

Title insurance will also protect you against title fraud. As we move further into digitalization, title fraud is an ever-growing threat. You need to be prepared and protected. The costs are, quite literally, too high to take such a risk.

Title fraud, or title theft, is where criminals can steal the title or apply for a mortgage against your home without your knowledge.  In fact, you may not discover title theft until you try to refinance or sell your home.

In the absence of title insurance, you will be responsible for the legal fees and other costs to remove a fraudulent mortgage from your title. The cost to resolve these problems can easily total hundreds of thousands of dollars. 

A prudent homeowner will invest in title insurance. It is a relatively low-cost, one-time payment that will protect you against many problems and give you peace of mind that your home is protected. In addition, your homeowner policy will cover you for the entire period that you own that property, whereas your lender policy will change if your lender changes, or it could change if you refinance with the same lender.

When should I get a lawyer involved before buying a home?

You should contact a lawyer as soon as you have an offer prepared and before it is firmed up (i.e. conditions are waived or fulfilled).  The sooner a lawyer is involved, the more smoothly your purchase process will be. 

When you work with a lawyer from early on in the process, your lawyer can deal with problems as they arise and avoid unpleasant surprises later on. Working with an experienced lawyer is one of the best decisions you can make when buying your home. 

If you are purchasing a condominium, your lawyer will need time to review the status certificate and ensure that everything is handled correctly and according to the Condominium Act, 1998. 

At the bare minimum, you will need a lawyer in place two weeks before the closing date. This is often, though not always, the deadline for completing a title search.  This is why it is critical to get your lawyer involved as soon as the offer has been prepared.

What should I budget for closing costs?

You want to make sure that you are prepared for the costs of buying your home. These costs will include:

  • your down payment
  • legal fees and reimbursements, including:
    • regulatory fees
    • title search fees
    • title insurance
    • Land Transfer Tax

I’m buying my first home, so the Land Transfer Tax is refunded, right?

This is not as simple as you may have been led to believe, so let’s outline the qualifications for the first-time homeowner refund.

You must have never owned a home anywhere in the world. You must have never appeared on the title for any property.  It does not matter how you acquired the home, whether it was given to you, purchased, or as an inheritance.

Secondly, your spouse must not have owned any property anywhere in the world during the time that they were your spouse. Again, it does not matter if your spouse was gifted or inherited property.

If you are unsure whether you would qualify, feel free to reach out. Our team would be happy to clarify this issue for you.

What about my realtor costs?

You do not have to pay your agent if you are only purchasing a home.  However, if you are selling a property and buying another one simultaneously, there may be a commission. Therefore, you should ask your agent what that split is for both selling and buying from them.  As well, if you are selling your home, then there is normally a commission payable to your realtor in accordance with your contract with that realtor.

How does the closing day work during COVID-19?

Everything can be done virtually, including transferring funds. Even the keys will be left at the property in a secure location (such as a lockbox).  At Beeksma Law, your entire transaction is completed remotely, from start to finish.

Who will connect me to the utilities for this property?

It is your responsibility to set up your accounts with the utilities for the property. However, as part of our closing process, we ensure that you have the information that you need to handle that process.

How do I find a great real estate lawyer?

You talk to the team at Beeksma Law, of course! Our team works together to ensure that buying your new home is a smooth process. As well, we understand that you may have a lot of questions about this process. Therefore, we will take the time to explain each step clearly so that you can be confident as we move forward.

Just note what one of our recent clients had to say: “Thank you for all your work in helping me to buy my first home. There were a lot of unknowns about it for me, so your patience with me, your willingness to explain things in simpler ways and your shared excitement were a huge blessing. Thanks again.”

When you work with Beeksma Law to buy your first home, you can expect excellence, prompt communication and advice that you can rely on.

If you would like to talk to our team, book a call here: [link]. We would be more than happy to answer any of your questions.

5 Contracts that Your Small Business May Need

Disclaimer: This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

There are many different types of contracts that a small business might need, and it is important to know which ones you will need in order to avoid any problems. In this post, we will go over five types of contracts that a successful small business may need. There are many others out there, but these five should cover most bases!

At Beeksma Law, we are also entrepreneurs and are passionate about helping small businesses and entrepreneurs succeed!

In fact, one client recently said, The team at Beeksma Law made this process so easy for me! They helped me determine what I needed to include in my contract and helped me understand each component.”

If you want to take a closer look at your existing contracts or want to talk about some new ones, then do book a call today to discuss your business needs with our team.

Do I need a contract?

This comes up often, especially when doing business with someone familiar. There is a conversation and everyone is in agreement, so why have a formal agreement?

Because too often, memories of conversations become clouded over time. In the absence of a contract, assumptions can be made. Assumptions become misunderstandings that quickly snowball into disagreements.

Too often, we see small businesses realize too late that an ounce of prevention would have resulted in a pound of cure.

Protect your relationships by having a contract in place. Clearly outline roles, responsibilities, expectations, and boundaries. Contracts don’t have to be complicated, but they do need to exist.  

Can I Do it Myself?

Let’s first discuss the danger of trying to write your own contracts or use templates from the internet!

Imagine you found a box lying in the ditch that said “cookies”.  Would you take it home and eat it? No! You have no idea where it came from and if it contains something that might be damaging to you.

It’s the same idea with template contracts. Unless you know the source, you cannot be sure if it is right for your business.  It could be written with a different jurisdiction in mind. It may reference antiquated legislation or a recent case may have clarified a certain point of how contracts should be drafted.

Whatever the issues, the result would be the same: you would have a contract that would not be serving your business and would, as a matter of fact, do real damage down the line.

Knowing that you need contracts specific to your business, which ones do you need? Here are just some of the contracts that your small business may want to have in place.

Service Contract

A service contract is an agreement to provide some service, whether it is a one-time event or ongoing.

A good service contract will contain the following:

* Details of the service and how long it will take to provide.

* Payment details, including when payment is due and whether there are any fees for late payments or missed deadlines.

The contract should also contain a termination clause so that either party can terminate at their discretion without penalty if they believe the other side is not fulfilling their obligations under the contract.

Website Terms of Use Agreement

If your business has a website (and yours most likely does) then you will need a website terms of use agreement.

Basically, it is an agreement between your business and users on the website outlining what visitors can and cannot do with the information contained therein. For example, a strong agreement will contain copyright protection warnings or sets forth any disclaimers related to the information on the website.  It will also contain a privacy policy that discusses the collection and use of any personal information obtained.

Non-Disclosure Agreement (NDA)

In order to do business, you sometimes need to share information with a potential client or a contractor. An NDA, also called a confidentiality agreement, protects the confidential information of your business, whether it is a product or service you are developing or the processes that you use every day in your business.

You have worked hard to develop your business and that information should not be used to further someone else’s goals.  A non-disclosure agreement can help to protect your business and its intellectual property.

Lease

If your business has a physical location, you are likely going to be leasing that space. 

You are going to want a lease agreement that outlines the terms of your relationship with the landlord.  

As well, your landlord likely provided you with a lease to be signed.  You are going to want to make sure that your lawyer reviews that lease before you sign it. She will make sure that you fully understand and agree to its terms. She may also give you some recommendations on negotiating certain terms so that you have more rights. 

Additionally, your business may be creating or selling products, so you will need to include information in the lease about what can and cannot be done on the property.

While each business is different and each space is unique, a lease will generally include the following:

  • the parties
  • details about the space, including:
    • the address
    • a legal description
    • the square footage
    • the type of space (warehouse, office, retail, etc.)
    • the term of the lease
    • the amount of rent
    • any fixtures that are included
    • any security deposits
  • how the property can and cannot be used.

A lawyer that understands business contracts and real estate is an invaluable resource when it comes time to negotiate a commercial lease for your business. 

Partnership Agreement

You may not be starting your business on your own. You may be working with a partner.

Of course, you go into business with someone because you get along. What could possibly go wrong?

As it turns out, there can be many disagreements that arise in the absence of a strong partnership agreement. While ideally a partnership agreement is drafted before you start your business, it can be written up at any point.

Basically, a partnership agreement sets out the relationship between business partners and their individual obligations.  A partnership agreement should include: 

  • the amount of capital that each person is investing in the business;
  • how profits and losses will be shared, split, or otherwise distributed between partners;
  • how the business will be run; and
  • how the partnership can be dissolved.

In the absence of a partnership agreement, the Partnerships Act sets out default rules that may not be to your benefit.  Therefore, it is prudent to put a formal agreement into place that sets out the terms of the partnership clearly.

Prevent Issues Before They Arise

At Beeksma Law, we are passionate about preventing or de-escalating issues before they turn into larger legal battles. One way that small businesses can avoid hefty legal expenses is by having the right contracts in place.

If you would like to learn more about how we help small businesses, please click here or book a call with us.