Wills

Wills & Life Planning

A survey conducted by Angus Reid Institute in December 2017 found that 58% of people in Saskatchewan and Manitoba don’t have a will (Angus Reid Institute: What ‘will’ happen with your assets? Half of Canadian adults say they don’t have a last will and testament). More younger adults are without wills than older adults; and women are less likely to have a will than men. We have some work to do. If you have children, even if you don’t have many assets, as their parents you should still address in your will who you want to be their guardian if both of you die.

It is important to put the proper legal documents in place to deal proactively with your estate, potential lack of capacity or whether you want specific health treatment. By investing some time, money and effort now – you can save your family so much more time, money and hassle in the future.

Following are answers to questions you might have, and below are links to additional resources. Contact me if you want to make a will, power of attorney or health-care directive. Or, if someone is no longer mentally capable and there needs to be a guardianship application, I can help with that too.

Who should I choose as an executor?

It is important that your executor is trustworthy, organized and interested in seeing your wishes fulfilled. You can have from one to three executors. The job of an executor is quite difficult, so although you may want to honor someone by naming them – it works best when they have the necessary skills. Usually a person will name a family member, but you don’t have to; you can name a friend or a corporate trustee. If you choose to name a trust company or wealth management company as your executor – you should get their consent and it is often prudent to enter into an agreement on the fees, if possible. Many wealth management companies can now be hired to help executors. It is important to name one or two alternate executors if for some reason your executor is unable or unwilling to do the job.

What do I do when I have beneficiaries with special needs?

If you have a beneficiary who is a child, mentally or physically disabled, or a spendthrift – it is important that your will is drafted to address the possible issues.

A well-written will can: name a preferred guardian for your children; take advantage of tax rollovers to spouses and disabled beneficiaries; allow disabled beneficiaries to continue to receive government support; set up trusts for minors; and/or stagger payments to beneficiaries who are not good money managers.

Make sure you talk to a lawyer. Spending some time and money now, will save a lot of time and money in the future.

I am moving in with my partner, will this affect my will?

Yes. In Saskatchewan, when you live with your partner in a spousal type of relationship for at least two continual years you are considered common-law spouses. It is the same for same-sex relationships. At the two-year mark, when your partner becomes your common-law spouse, in most cases your will is nullified. That means it is gone and you need to write a new will.

Also, you have a legal obligation to provide for your common-law spouse in your will, unless you have an interspousal agreement (such as a prenuptial agreement). If you don't, your common-law spouse could challenge your will.

Is there some way I can protect my daughter’s inheritance from being split with her husband if she divorces after I die?

Perhaps. In Saskatchewan, inheritances received when you're married are considered part of your matrimonial property. If you specifically state in your will that you are giving the inheritance to your daughter and not to her husband, and if your daughter and son-in-law sign an interspousal agreement acknowledging this – then if they later divorce there is a better chance of your daughter's inheritance being all hers. It will depend on how your daughter uses her inheritance while she is married – if she commingles it with other family assets or uses it to buy the family home then it will likely be seen as matrimonial property and she will still have to split it with her ex-husband.

What is a Power of Attorney?

A power of attorney is a document you sign that gives someone else the ability to make decisions and sign on your behalf. In Saskatchewan, you can establish a power of attorney for a specific event – such as selling your house; or you can establish an enduring power of attorney that operates even after you have lost the capacity to make decisions. You can also have a power of attorney take effect immediately, or conditional on a pre-determined event such as your doctor certifying that you have lost the ability to make decisions. You can also name one person or more than one person as your power of attorney. If you name more than one, you can state whether they need to sign together or in place of each other. You can also revoke your power of attorney, as long as you’re still competent, and name someone else.

Your attorney is legally obligated to act in your best interest; and you can require your attorney to provide an accounting to another person. But if you are giving your attorney authority over all your assets – it is important that your attorney is someone you trust implicitly.

As you can see, a power of attorney can be an extremely helpful document. Especially if you later lose the ability to make decisions. However, a power of attorney doesn't work after you die; and you can't change your power of attorney or make a new power of attorney if you have lost the mental capacity to do so.

How do I set up a Living Will / Health Care Directive?

In Saskatchewan, a living will is officially known as a health care directive. A health care directive states the health care you want to receive, or not receive, when you temporarily can’t communicate or when you no longer have capacity. You can name a proxy in a health care directive to make these decisions for you when you are unable to communicate yourself. Your proxy must act in accordance with your wishes, and if they don’t know your wishes, then what they believe to be in your best interest. You can’t use a health care directive to ask for medical assistance in dying because in Canada you need to be able to confirm your consent up to the point when the medical assistance is provided, and a health care directive only operates when you can’t communicate.

Some common medical treatments addressed in health care directives include: respirators and ventilators; blood and blood products; cardio and pulmonary resuscitation; dialysis; diagnostic tests; high-powered drugs; pain management; and hydration or nutrients by tube. It is best to speak with your doctor to learn what the normal treatments are in your situation, so you can address them properly in your directive. Once you have a health care directive you should share it with your doctor, proxy, and close friend or relative – because if they don’t know it exists they can’t follow it.

I can help you draft your health care directive. When we meet you should know whether you want common treatments and any specific treatments you may be facing if you suffer from a particular health condition.

What is the best thing to do so my family doesn’t fight over my estate after I die?

The best thing to do is meet with all of the beneficiaries while you are alive, preferably together, and explain how you are dividing up your estate and why. This way there won't be any false expectations or big surprises. The biggest problems arise when people have been told different things – or get the wrong ideas that are not corrected.


Other Wills and Estates Resources:

Wills and Estates in Saskatchewan – Public Legal Education Association of Saskatchewan (PLEA)
The Public Legal Education Association of Saskatchewan (PLEA) was incorporated in 1980 as a non-profit, non-government organization that exists to educate, inform and empower through law-related education.

Powers of Attorney – Government of Saskatchewan
A power of attorney is a document in which a person appoints another person to act on his or her behalf in connection with his or her personal and/or property affairs.

Health Care Directives in Canada – Canadian Virtual Hospice
The Canadian Virtual Hospice provides support and personalized information about palliative and end-of-life care to patients, family members, health care providers, researchers and educators.

Guardianship and Co-Decision-Making for Dependent Adults – Government of Saskatchewan
An adult who does not have the capacity to make financial or personal decisions may be exploited by others or may endanger his or her own financial or personal welfare. For his or her own protection, the adult may require a guardian or co-decision-maker.

Medical Assistance in Dying – Government of Canada
Learn about medical assistance in dying, including the requirements of the law, eligibility and how the request process works. Find information about the independent reviews currently underway of requests that are not eligible under the law.

Four Key Documents Everyone Should Have – Diocese of Saskatoon Catholic Foundation
A Will is not the only thing you need to ensure that your finances are in order. Here are four key documents everyone should have. Also available are downloadable guides on estate planning.


Notice: The information provided on this website is general in nature. It does not constitute legal advice to you and no solicitor client relationship will be established. The information pertains to the law and process in Saskatchewan, Canada and may not be applicable in your jurisdiction. You should seek legal advice regarding your circumstances from a lawyer in your jurisdiction.