What is Capacity?A drafting wills lawyer is tasked with the role of carrying out a legal assessment of their client's capacity to make a will. In Ontario, to have capacity to make a will, one must have the ability to understand the information relevant to making the decision, and the ability to appreciate the potential consequences of a decision or lack of decision.
The Divisional Court recently allowed the appeal in the matter of Milne Estate (Re), 2019 ONSC 579, providing a sigh of relief for estate planning lawyers across the Province.The Milne case deals with the validity of multiple wills and the ability of a Secondary Will to give discretion to the trustees to define which assets would form part of it as well as with the question of whether a will is a trust. The lower court's decision in Milne Estate (Re), 2018 ONSC 4174 raised many concerns in Ontario regarding the practice of creating multiple wills. In this post, we will take a brief look at Justice Dunphy's decision, the recent Divisional Court decision overturning Justice Dunphy's ruling and the impact this will have on estate planning in Ontario.
All residents of Ontario should make provisions for the distribution of their estates after they pass away. For some, this may mean little more than creating a simple will and granting power of attorney in case of incapacitation. For those with more complicated estates, careful estate planning is essential, especially in the digital era of the 21st century.