Why “letting the kids sort it out” is a bad estate plan: the importance of having a Will

When I was growing up, I spent many days helping my dad on various jobs—he was a commercial contractor. In some of his residential work, I saw first hand just how much his customers cherished their family homes. My dad built beautiful solid oak bars and wine racks and mahogany cabinets of the finest craftsmanship. Sometimes his customers would just stare as the work was being completed—they wanted the highest caliber and my dad delivered. I learned very early on just how much his customers loved their homes and wanted them to be perfect in every way for their children.

Fast forward to the present. Now the parents have passed away without leaving a Will. That family home that was once cherished, which was once a place of love and comfort that the parents poured their hearts and souls into making beautiful, might now simply be an asset with a monetary value. And you’re not having it because “I’m getting it.” In the absence of a Will setting out who gets what, this “family home” might give rise to a substantial level of in-fighting between the children, particularly if the family wasn’t the Brady Bunch to begin with. The parents hadn’t made a Will nor had responsible conversations with their children about their estate. This has consequences.

The in-fighting in an intestacy (where one dies without leaving a Will) is compounded by an important demographic and sociological dynamic that has emerged. With people living longer, we are now living through one of the largest transfers of wealth in human history from the parents of the baby boomers to the baby boomers. The parents of the baby boomers lived through the Great Depression. They were savers. Having money in the bank was a lot more important than wearing a fancy watch or having a flashy car. While they scrimped and saved to give their children a better life, their children—the baby boomers—are the opposite. Much of the baby boomer generation are care free spenders and some are up to their ears in debt. Some of the baby boomers are depending on an inheritance from their parents as a cushion to fall down on and they will fight tooth and nail to get it.

Despite the extraordinary growth in estate litigation, the majority of adults in Ontario do not have a Will. Yet when asked whether they would rather the government determine how their estate should be disposed of, people invariably prefer that they have the final say. Dying without a Will not only lets the state decide how your estate is to be distributed and can give rise to in-fighting between the beneficiaries, but can also introduce substantial delays and considerable costs to managing and distributing your estate.

For these reasons, a Will is a critical document in the planning of your estate. It will ensure that you maintain control over your assets and that your loved ones are taken care of. If you have minor children, heaven forbid something should happen, a clause in your Will can address who should have custody over your children. Perhaps the deceased bought a do-it-yourself Will kit and left a particular house or a particular car to someone, but now it’s been 7 years since that Will was made, and at the time of death the deceased owned a different house and a different car. Now that “would be” beneficiary doesn’t get anything because the Will wasn’t drafted generally enough. Maybe you made a Will 4 years ago but got married just last year (marriage automatically revokes the Will). There are many good reasons for having a Will prepared, and many considerations that are best addressed in collaboration with a lawyer who will draft the document.

If having a Will and Powers of Attorney interests you, you can PM me or send me a confidential email to colincuttress@outlook.com or call me at 647 643-2065.

Colin Cuttress, Barrister & Solicitor

Other areas of my practice: -Litigation -Employment Law and Sports contracts -Corporate law -Human rights law