No Will? No Way!

According to this poll taken in 2018, 51% of Canadians do not have a Will. Of those surveyed, only 35% of those with a Will have one that is up-to-date. That is 65% of Canadians that either have a dated estate plan or don’t have one at all. Why are the majority of Canadians putting off estate planning?

If you die without a Will in Ontario, the division of any assets on your death will be determined by the Succession Law Reform Act. This Act strictly sets out who will inherit under your Estate and might exclude those who you would have otherwise left assets to (such as a common law spouse).

If your estate plan is out-of-date, you could be excluding those you now wish to include or including those you now wish to exclude from inheriting your assets. There are also potential for problems in an outdated Will because of the impact of legal decisions that have occurred since the Will was written.

There are several reasons that people will give for not having a Will or not getting their current Will updated. These include being too young to need a Will, not wanting to think about death, getting a Will costs too much money, and not having enough assets to need a Will. Without estate planning, you could potentially be leaving an estate that could be significant work and very costly to your family and friends. That is why it is so important to have an updated Will, because it is not only yourself, but those you are leaving behind that you have to consider.

 

Ontario vs Canada

If you’re looking at incorporating a business, you will have to decide whether to incorporate that business in Ontario or in Canada. But Ontario is a part of Canada, how does that make any sense?

It does make sense because corporations that are incorporated in Ontario fall under the Ontario Business Corporations Act. You can read the whole Act here if you would like.

Incorporating as an Ontario corporation means that you can do business within the province. This is typically chosen if you don’t expect your corporation to grow beyond the province or you’re only planning on doing business within the province. Your corporation’s name will be protected from registration by another business in Ontario.

Incorporating federally in Canada means that your corporation would fall under the Canada Business Corporations Act. You can read the whole Act here if you would like.

Incorporating as a Canadian corporation allows your corporation to do business across Canada and internationally. You must file ‘extra provincial’ registrations for any province that you will be conducting business in (for an additional fee). You will also have to pay an annual fee if you incorporate federally. Your corporation’s name will be protected from registration by another business across Canada.

The differences between incorporating in Ontario or Canada will have an impact on your business. If you are thinking of incorporating, either as an Ontario corporation or as a Canadian corporation, you should consult a lawyer. A lawyer will be able to take you through the whole process and ensure the execution of all the proper documents, whether you wish to incorporate in Ontario or Canada.

Celebrate Good Times

For many people, a major change in your life is a time for celebration. Maybe you recently got married or had a child or won the lottery. First of all, congratulations! Secondly, while this is a time for celebration, it is also an important time to check your will. You might not think to do so, but many major events in your life can impact your will.

A change in your marital status can significantly impact your will. If you get married, any existing will that you have has now been revoked (unless that will specifically states that the will is made in contemplation of your marriage to that individual). This means that your existing will is treated as though it no longer exists. Similarly, if you get divorced, any existing will that you have has now been revoked. Separation from a spouse does not revoke a will, meaning that your spouse can inherit under your will and could still be appointed as your executor.

It is also important to keep track of your assets in case those substantially change. If this is the case, your will might have to be updated to reflect these changes.

So if you just went through an exciting major change in your life, celebrate it, but also get your will updated if its necessary.

Don’t Forget Your Furry Family Members

Many of us consider our pets to be members of our family. Some have taken this idea even further, actually left their entire fortune to their pets on their death. An example of this is Karlotta Leibenstein. Ms. Leibenstein was a German countess and multi-millionaire who left $80 million to her dog, Gunther III. This fortune was inherited by Gunther III’s son, Gunther IV, who is now worth over $400 million. You can read more about Gunther IV and his luxurious lifestyle here (he owns a property in Miami that once belonged to Madonna). While you might not be able to leave your pet millions of dollars, you can set up a pet trust for them in your will.

Under Ontario law, pets are considered as property. As such, your executor will have the right to decide what happens to your pets. Your executor would have the power to choose where your pets go and can even decide to take them to a shelter or put them to sleep.

If you do not have a will, you will not be able to decide who will care for your pets after your death. The courts will appoint an executor for you. This person will be chosen from the members of your family who step forward to act as executor. The person that the court chooses might not be the person you would have chosen to act as your executor.

One way to protect your pets is to put a pet trust into your will. A pet trust will arrange for any pets to be cared for after their owner’s death. By planning ahead, you can ensure that your furry family members are cared for after your death.

Review Before You Sign

Most purchasers and sellers send their agreements to their real estate lawyer after the agreement has already been signed. At this point, it is typically too late to amend or get out of the deal. This is why it is important to have your lawyer review the agreement prior to signing.

If your purchase or sale agreement is conditional on lawyer’s review, then your lawyer can go through the entire agreement. Through this review, a lawyer can determine whether any changes should be made. Without a review clause in the agreement, the purchaser and seller are bound by the terms in the agreement. A review of the agreement can address issues at the outset of the real estate transaction, saving you time and money.

This is particularly true with the purchase of a property which has not been built or with the purchase of a condominium. These types of purchase transactions tend have lengthy agreements. Having a lawyer review these documents means that all the details are examined thoroughly.

The purchasing or selling of a house is one of the largest transactions that you will make in your life. Why not have a lawyer with expertise in this area review your agreement?

No Laughing Matter

In August 2003, Canadian high school student Mike Rowe registered the domain name MikeRoweSoft.com. He thought that since his name was Mike Rowe it would be funny to add the word ‘soft’ to the end of it. It was not so funny when Microsoft brought trademark proceedings against him.

Last week I wrote about the additional name protection that a business has upon incorporation. Incorporated businesses can take this name protection one step further by trademarking their name. Trademarking a name allows you the right to initiate trademark proceedings against another person or business to prevent others from using the same business name as yours. This applies not only to business names, but also domain names.

Microsoft initiated trademark proceedings against Mike Rowe, claiming that the domain name infringed on their trademarked name. This was because the name MikeRoweSoft was phonetically similar to Microsoft. Microsoft demanded that Mike Rowe give up the domain name and offered to pay his out-of-pocket expenses, being the $10 he spent to register the domain name. Rowe countered with an offer of $10,000. Eventually both parties reached an out of court settlement. Under this settlement, Mike Rowe stopped using the domain name MikeRoweSoft.com. In exchange, Microsoft provided access to several of their paid courses and websites and sent Mike Rowe an Xbox.

While it might seem harsh that Microsoft went after a high school student, they had to protect their trademarked name. Trademark does provide a business with extra name protection, but only if it is exercised. Microsoft did so in this case to protect its name and reputation.

Can I get a witness?

When preparing your own will, it is easy to overlook some legal formalities that could cost you (or others) much more than you think. One of these is having proper witnesses for your will.

It is a requirement to have two witnesses to witness your signature on a will. If this requirement is not met, it would require a court application to determine if the will is valid. If the will is not valid, then a previous will or intestacy laws would determine who inherits.

There are also restrictions as to who can be a witness on a will. If you are a beneficiary under the will and you are also a witness on the will, the gift that was left to you as beneficiary is no longer valid. This offers protection for will drafter in case the beneficiary is forcing you to sign the will. While it might not be your intention, you could prevent someone from inheriting their gift, or they could have to take legal action to inherit under the will (costing them money).

Under a holograph (handwritten) will having witnesses is not a requirement. This type of will can come with its own set of problems though in relation to witnesses. A handwritten will must be entirely written in your own cursive handwriting (not typed, printed or handwritten by another person). Your handwriting must then be properly identified by someone, which could require previous writing samples or could even involve hiring a handwriting expert to identify your handwriting. All of this would be submitted under a court application to validate the will, costing more money.

All this said, using a lawyer to draft your will provides you with an expert who can avoid these legal pitfalls and help save you money in the end.

What’s in a Name?

If you are thinking about incorporating a business, one of the advantages is the ability to reserve your chosen business name. When you incorporate your business in Ontario, your business name is reserved for use in the province. When you incorporate your business federally, your business name is reserved for use throughout Canada. Sole proprietorships and partnerships do not have this protection, and anyone can start a business with the same or a similar name to your business if you are not incorporated.

Incorporating your business can also offer you additional name protection through a NUANS name search. This search lists similar corporate names and trademarks across Canada to ensure that the searched business name is not currently reserved by another corporation or is not confusingly similar to another corporation’s name. A NUANS report also reserves the proposed corporate name for 90 days, ensuring that no other corporation or trademark can register under a similar name in that time frame. More information on the NUANS report can be found here.