the real/estate blog

Are you capable?

Posted in Capacity,Estate Planning by Cesia Green on January 29, 2013

A lot of people leave will drafting until the very last minute; sometimes, we get calls from people panicked that their elderly mother or father needs to enter into long-term care and needs a power of attorney in a hurry. The question then becomes: are they capable?

Capacity to make a will is a very tricky thing. You can be capable today and not tomorrow; you can be capable in the morning and not later in the day. When a person is declared incapable, in can mean a lot of very different things.

Capacity to make a will is determined through a combination of legislation and court history. Capacity to make a power of attorney is done the same way. There are other tests for making decisions about care or property, or even the capacity to marry.

In a law office, your lawyer will determine if you know who you owe obligations to and approximately what you own. They will chat with you to assess whether you know who is in your family, how many grandchildren you have, and how you met your spouse. They may even casually ask about what day or month it is. Capacity is a very serious issue, and it is extremely important to have a note in your file that the lawyer has no concerns about yours.


Caring for your pet during incapacity

Laura West at the All About Estates blog posted last week about planning for your pet’s care during your incapacity. I have blogged before about pet trusts on your death, but it is also important to set up a plan for what will happen in case you are unable to care for your pet because of an injury or illness.

As Laura notes, pets are property and need to be dealt with in a Continuing Power of Attorney for Property. As with any specific directions you may have, you should speak with your attorney at the time you sign the Power of Attorney document to ensure that they are aware of your instructions and know what you wish them to do in the event that you can no longer care for yourself and/or your pet. Communication is always key in these situations.

The law is still very nebulous surrounding the care of pets on incapacity or death, but with some careful planning you should be able to ensure that your furry friend is cared for.

Predatory marriages

Posted in Capacity,Estate Planning,Intestacy by Cesia Green on December 6, 2011
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There is a very well-known case in Ontario called Banton v. Banton. In that case, an elderly man married a waitress in his long-term care facility and subsequently redid his will, cutting out his children from his first marriage and leaving his new wife his entire (substantial) estate. When the children challenged the will, it was found to be invalid because he had no capacity to make a new will, but because he had married, he had revoked the old will, and so his new wife still inherited a significant amount of the estate.

There is a requirement in Ontario that a person signing a will must have what is called testamentary capacity, that is, the ability to understand what he or she owns in terms of assets and who he or she owes obligations to (spouse, children, other dependants, etc.). However, there is no requirement that a person have any particular level of capacity to marry. Marriage in Ontario automatically revokes a will, and so “predatory marriages” have the potential to throw very careful estate plans into complete disarray.

Unfortunately, this situation still happens. There are many estates lawyers who believe that there should be a capacity requirement for marriage, considering how deeply it can affect an estate plan, but until this happens all we can do is be vigilant.