ARTICLES OF INTEREST

Here are a few articles that may be of interest to you.

The first one appeared in the Globe and Mail newspaper on July 25, 2014. Titled "Every minute counts to a billing lawyer", it quotes me talking about how I manage my law office by using state of the art technology, software, etc.. Here are two links to it:

Globe and Mail on-line article: click here

PDF version: click here

The second one appeared in the Toronto Star newspaper on April 8, 2016. Titled "Lawsuits can offer partial justice for sexual assault victims", it quotes me talking about how I guided a client who was sexually assaulted through a Small Claims Court action that brought some justice and put money in my client's pocket. Here is a link to it:

http://www.thestar.com/opinion/commentary/2016/04/06/lawsuits-can-offer-partial-justice-for-sexual-assault-victims.html

Here is the text of a third article. I wrote this one for inclusion in a local hospital's newsletter.

"Why should I make a Will ?"

Every few months in my Estates/Wills law practice a client asks me : "why should I make a Will ?". My short answer is : "to protect your life savings & to have your Estate go where you want it to go". If asked to explain I give a longer answer that usually goes something like this: In Ontario, if you die without a Will (ie: "intestate") , the Succession Law Reform Act ("SLRA") sets out how distribution of your Estate will take place: 1. if you never had any children, your entire Estate will go to your (lawfully wedded) spouse; 2. if you had only one child, the first $ 200,000 of your Estate will go to your spouse and the remainder will be split 1 /2 & 1 / 2, between your spouse and your child ; 3. if you have more than one child, the first $ 200,000 will go to your spouse and the remainder will be split 1 / 3 & 2 / 3, between your spouse ( 1 / 3 ) and your children ( 2 / 3 is shared equally between them ) ; 4. if you have no living spouse and never had any children, your Estate will go to your living parents in equal shares ; 5. if you have no living parents, no living spouse and never had any children, your Estate will go to your brothers and sisters in equal shares ; 6. and so on.

If you die without a surviving spouse, children, parent, brother, sister, nephew, niece, or any other relatives/next of kin, everything goes to the provincial government (ie: it "escheats to the Crown" under the Escheats Act). Then there is the Ontario Family Law Act ("FLA"). Just like the old child's game of rock/paper/scissors where paper covers rock, the FLA covers the SLRA, in that it entitles a surviving spouse to elect either to take her/his share according to either: 1. the terms of the Will (or in an "intestacy", according to the provisions of the SLRA), or 2. under the FLA's property division and equalization scheme (which is also applicable upon marital separation/divorce : in family law in Ontario a divorce really is analogous to a death). The choice is the surviving spouse's to make, whichever is best for her/him. The bottom line is that you can't cut your spouse out of your Estate. Your surviving spouse can do no worse than to get at least 1 /2 of the value of the amount acquired by both spouses from your wedding day until your date of death.

Making a Will protects your loved ones. It is the only way to be certain that the fruits of a lifetime of labour are passed on to the people you choose. A Will provides security for your family and those you are responsible for. Most of your life is spent building up your assets. These may consist of home, car, cottage, boat, stocks, bonds, insurance policies and other investments. You will want those assets to go to the people you choose, rather than to someone else, right ? If you have children under 18, you may wish to nominate guardians and make arrangements for their future financial needs and their education. If you have married for a second time, you need a new Will to protect any members of your new extended family. A marriage invalidates any prior Will, so unless you have a new Will which includes reference to your new family, your new extended family may not get the protection you want to give to them. (As set out above, any children from previous marriages would be protected under the SLRA if you died without making a new Will after you married again). If you die without a Will and are not legally married to your partner, she/he could stand to lose assets and mementos that you wanted to pass on to her/him, since a "common law" spouse does not have an automatic entitlement to share in your Estate if you die without a Will.

With a Will, you can designate where your cottage, art, car, boat, house and other personal property will go when you are gone. Without a Will, your Estate Trustee may choose to sell all of your assets and turn them into cash. A Will helps you protect items of sentimental value from being sold. With a Will, you'll leave your family with more money. A properly prepared Will can cut down on the taxes payable out of your Estate. For instance you may decide to own certain assets such as real estate or bank accounts as "joint tenancy, with right of survivorship". That way, whomever you own the asset with shall inherit it, regardless of what is in your Will.

Your Will only deals with assets that are in your name alone. The amount of fees payable to the provincial government when the Will is probated in Estates Court is based upon only those assets which are in your name alone. Making a Will also allows for a smooth transfer of assets. Without a Will, there must be an Application to the Estates Court in order to appoint an Estate Trustee/Administrator. Under this scenario, the Estate Trustee derives her/his power to manage your assets from such Court appointment. This takes more time and is often more costly, resulting in less money available for your Estate. There is also a "no man's land" time zone where your Estate is frozen in limbo, since the Court has not yet decided who has the legal right to deal with it. However, if you have a Will, the Estate Trustee/Executor named in the Will derives her/his power immediately upon your death from the terms of the Will itself. By the way, not every Will needs to be "probated". What used to be called "Letters Probate" is now called a "Certificate of Appointment of Estate Trustee With a Will". In Toronto for instance, if one of the Estate's assets is real property, then an application for such a Certificate of Appointment will be necessary in order to transfer this Toronto property. The Certificate of Appointment is really an insurance policy whereby the government guarantees that the Will is indeed the Last Will and Testament. Everyone can rely upon it. The Land Registry Office in Toronto requires a Certificate of Appointment before it will allow a transfer of title to a deceased's land. However, if your Estate consists solely of a bank account at a local branch of one of the "big five" banks the bank may transfer the bank account to your Executor without the necessity of applying for a Certificate of Appointment. It all depends on how much risk your local bank manager is willing to take. If she/he knows you, knows your family, etc. and if after looking over the Will decides that there is little risk involved, she/he may well transfer the deceased's bank account to the Estate Trustee.

So, make a Will. For a few hundred dollars, it is one of the best investments you can make.

(The foregoing is not intended to be relied upon as legal advice. It is for informational purposes only. For proper legal advice, see a lawyer who practices in the area of Estates/Wills. Joseph Anthony (Tony) Baker is an Estates/Wills lawyer who practises at 500 Danforth Avenue in Toronto.)



Joseph Anthony (Tony) Baker -- Lawyer, Mediator & Estate Trustee
500 Danforth Avenue, Toronto, Ontario, Canada, M4K 1P6
Phone: (416) 463-4411-- Fax: (416) 463-4562 -- eMail: tbaker1952@aol.com