Everyone has the ability to deal with their assets in any way they see fit during their lifetime. The theory goes that one should have that same ability upon death.

Testamentary freedom is an unassailable concept in Canadian law. There are very few ways in which a testator's authority to deal with their estate – in whatever way they wish – is fettered.

Once example is through dependant's support legislation. The determination as to who is a dependant and to what extent a dependant shall be compensated varies greatly from province to province.

This is an excerpt from an Ontario Bar Association, please click here to read the rest of the story.

The controversy surrounding the death of financier Jeffrey Epstein shows that no matter how rich or famous you are, issues around estate planning can come up after you die, says Toronto wills and estates lawyer Matthew Urback.

“Having hundreds of millions of dollars does not necessarily insulate anyone from the legal challenges in an estate after a person dies,” says Urback, a partner with Shibley Righton LLP.

Technology may be expanding our horizons faster than ever imagined, but don’t expect to see the legal acceptance of video wills any time soon, says Toronto wills and estates lawyer Matthew Urback.

Those who act as executors and attorneys are generally entitled to compensation for performing their duties, says Toronto litigator Matthew Urback.

In a recent Ontario Superior Court case — described by the judge as a rare “good news story” in an application to pass accounts — two caregivers for a wealthy elderly couple were awarded more than $750,000 as compensation for their role as attorneys for property and personal care, as well as for administering the estate of the husband when he died.

Online will kits are affordable and easy to use, but they deny the testator the opportunity to have meaningful discussions with a professional about individual circumstances and wishes, says Toronto wills and estates lawyer Matthew Urback.

Celebrities are just like the rest of us when it comes to estate disputes, says Toronto wills and estates lawyer Matthew Urback.

Billboard magazine recently reported on the ongoing and escalating battle between Tom Petty’s widow and the daughters of the musical superstar, who died from an accidental drug overdose at the age of 66 in 2017.

“This is a dynamic we see all the time in disputes, whether the estate is large, small or somewhere in between,” says Urback, partner with Shibley Righton LLP. “Issues between the spouse and children of the deceased frequently arise, particularly in situations where you have a second marriage, and the surviving spouse is not a parent of the children.

“Nobody is immune to these kinds of problems, which seem to almost transcend economic status,” he tells AdvocateDaily.com.

According to Billboard, a series of lawsuits have been filed in California courts by the singer’s two daughters and his wife, with each side accusing the other of standing in the way of the late star’s wishes.

In one case, a daughter alleged Petty’s wife prevented the sisters from “participating equally in the management” of their father’s estate by restricting the flow of his assets into Petty Unlimited, a company he created so that his two children and second wife could share the proceeds of his legacy, Billboard reports.

Another claim commenced on behalf of that company seeks $5 million in damages from Petty’s wife, accusing her of setting up a new entity, Tom Petty Legacy, “as a vehicle through which to deprive” it of the singer’s assets.

Meanwhile, the magazine reports that Petty’s wife launched her own action accusing the sisters of thwarting her role as “directing trustee” of Petty’s estate. All of the allegations have yet to be tested in court.

Although the details of the cases are murky, Urback says there are lessons for testators who wish to minimize the chances of expensive litigation between beneficiaries after their death.

For example, he says people will frequently appoint multiple executors without giving much thought to the issue.

“If you are granting more than one person authority to deal with your assets, it’s important to consider the dynamics between those people, and whether they can get along,” says Urback, who is not involved in these cases and comments generally.

Testators can add another layer of protection by inserting a dispute resolution clause that governs how trustees should proceed if they cannot agree among themselves.

In estates where more than two trustees are appointed, a majority vote may be suitable, Urback says, but even then there could be trouble.

“In the Tom Petty case, the daughters are saying they want ‘equal participation’ with the wife in decisions, but that term is a little ambiguous in this case because there are two of them and only one spouse. If they each got one vote, then the sisters would be able to win by voting in a block,” he says. “That’s a good example of how a phrase that appears clear when it stands alone might mean something else entirely in a different context.

“Testators may need to tweak common words and phrases to consider the circumstances of their own family and estate to ensure their intentions are reflected,” Urback says.

Testators should steer clear of ambiguous language if they wish to avoid a will challenge after their death, says Toronto wills and estates lawyer Matthew Urback.

In a recent decision, Alberta’s Court of Appeal upheld a lower court judge’s decision to include personal items located on the deceased’s property in the award to his surviving daughters after he bequeathed his "home" to them. That ruling came over the objections of the dead man’s brother, who hoped to inherit the disputed items as the beneficiary of the estate’s residue.

Urback, partner with Shibley Righton LLP, says the case should serve as a warning to testators, especially those with modest estates where litigation can easily erode a significant chunk of it.

“Include more detail and don’t use ambiguous language,” he tells AdvocateDaily.com. “It should all be designed to allow someone looking at the will to ascertain exactly what property it relates to.

“If you’re naming property, it should be described as clearly and concisely as possible. Some people will spell out the address or give some type of legal description,” Urback says.

The testator in the case died in 2014, a decade after signing a will that left his home to his two daughters, with the residue of the estate to go to his younger brother and business partner, who was also named executor of the estate.

When a dispute arose as to whether "home" should include personal property of the deceased, a judge ruled in favour of the daughters, concluding that they could inherit four motorcycles, a motorcycle trailer, truck and other items in the garage at their father’s place.

The unanimous three-judge appeal court panel found the trial judge made no reversible errors in his decision and was within his rights to accept extrinsic evidence from a friend of the deceased, as well as to interpret “home” broadly to include personal property that contributes to its enjoyment.

“There is ample evidence to support the court’s conclusion that the testator intended 'home' to be interpreted broadly. This interpretation is the best match for the testator’s object of financially assisting his daughters after his death,” the appeal court concluded after consulting several English-language dictionaries to confirm the word’s use to convey multiple meanings.

“I’m not surprised with the way the decision was reached, but it was interesting to me that the 138-paragraphs essentially came down to one word, and it looks like it was the authority of the dictionary that gave the motions judge the authority to look beyond the four corners of the will,” Urback says.

Alberta’s Wills and Succession Act provides statutory authority for judges to call extrinsic evidence as to a testator’s intentions, but Urback says it’s likely an Ontario judge would have reached a similar conclusion based on common law that allows judges to admit such evidence, as long as the contents of the will reveal some ambiguity.

“I think the wording of the will was sufficiently unclear that the evidence from the friend would have been allowed,” he says.

With almost a decade of experience behind him, Toronto litigator Matthew Urback has seen it all when it comes to estate plans.

Urback, partner with Shibley Righton LLP, shares with AdvocateDaily.com some of the biggest estate planning mistakes he’s come across.

1. Not having one

“It’s kind of self-evident, but by far and away the worst thing you can do is not to have an estate plan or a will,” Urback says. “Essentially what you are doing is abandoning your right to decide what happens to your property after you die, and putting it into the hands of others.”

Although Ontario’s Succession Law Reform Act (SLRA) determines the distribution of an estate when a person dies without a will, Urback points out that its strict rules take no account of the individual’s unique situation or desires.

2. Choosing the wrong estate trustee

Administering a will is not for the faint of heart, according to Urback, who explains that the job of trustee is harder than it sounds.

While most people pick a close family member by default, he suggests testators put a bit more thought into the choice.

“People close to you might not have the financial savviness needed for the task,” Urback says. “There are pros and cons to picking a trusted person who you have a close relationship with, as opposed to a professional trust company.”

Either way, he says selecting an alternate is good practice.

“It’s helpful to have a backup option in case your first choice can’t or won’t act,” Urback says.

In addition, he says testators who pick multiple trustees could be setting themselves up for trouble.

“You need to account for disputes between the trustees, and an odd number is better so that they can break deadlocks,” Urback says.

3. Never updating

“People like to do a will, and then put it in the drawer and forget about it,” says Urback.

But establishing an estate plan is rarely a one-time event, he warns. And while wills gather dust, lives are being lived, and circumstances are changing.

“What may have been appropriate at one point in time may not work at a later date,” he says. “Things can change in all kinds of ways, and your will should be updated to reflect those changes.”

4. DIY

“It’s almost always worth seeking professional advice instead of using will kits or attempting to do tax planning on your own,” says Urback, noting that many laypeople fall afoul of technicalities hidden in the law.

For example, he says many people are tempted to avoid probate fees by adding the intended beneficiary of property to title. While the transfer of the house will bypass the estate via right of survivorship, there may be a considerable capital gains tax liability, Urback says.

“Every act has a fallout, and it’s important to understand those before making any decisions,” he says.

5. Ignoring human nature

Whenever a story about an ugly estate fight engulfing the friends and family of a prominent person makes the news, Urback says most people have an understandable reaction to it.

“The thought is that this could never happen to my family and me,” he says. “People don’t like to consider that their loved ones will argue and fight, but the sad thing is that nobody is above it. There’s often no rhyme or reason to the types of people it happens to.”

Urback says testators who wish to minimize the chances of a spat over their estate should communicate openly with intended beneficiaries.

“If you’re treating your children unequally in the will, you might want to explain why, either in the will or in person, even if it means some uncomfortable conversations,” he says.

People who live common-law with a new partner after the breakdown of a marriage are advised to get their affairs in order — and get a will, Toronto litigator Matthew Urback tells AdvocateDaily.com.

“If that person were to die, it could be a messy situation,” says Urback, associate with Shibley Righton LLP. “Even if you were with a new spouse in a common-law relationship for decades, the law says that if you’re married, your former spouse will have an entitlement to your estate.”

The way the law treats people who die without a will — or intestate — is set out in Ontario’s Succession Law Reform Act, which explicitly details how an estate will be divided between surviving family members and relatives, “with spouse defined in that circumstance as ‘two people who are married each other,’” he explains.

If someone is in a common-law relationship and they don’t get a divorce to formally end their earlier marriage, Urback says the Act will stipulate that the former spouse has an entitlement to the estate, even if they parted decades ago.

“People should prepare a new will if they want to provide for their new spouse and any children,” he says. “If not, there is the possibility that the estate will go to the previous spouse, and the common-law partner may be left with nothing.”

When it comes to passing on your estate, “It’s much cleaner to be legally married rather than common-law,” he says.

Urback strongly recommends that everyone should have a will, and keep it updated as circumstances change.

“People want to have the freedom to make their own financial decisions in life,” he says. “Even in death, they should have the right to deal with their assets as they wish. Those without wills are abandoning that right, and their estate will be at the mercy of the law.”

If there are any dependents in the common-law union, they would be in a good position to make a claim for support, Urback says, noting the Succession Law Reform Act provides two definitions of “spouse” — one that applies to the interpretation of wills and the other to the support of dependents.

“When it comes to support, the Act doesn’t differentiate between a living-together spouse and a separated spouse,” he says, adding that anyone in a common-law marriage that has lasted for more than three years, or those in a relationship of some permanence with a child, are considered spouses when it comes to support payments.

Legal fights are quite common if someone in a second marriage dies without a will, Urback says, especially if there are children from each relationship.

“There is often tension between the children from the first marriage and second spouses,” he says. “If a parent dies without a will to spell out their wishes for the estate, that’s the start of a court battle, and a relationship that was never on solid footing has just been steered further off course.”

Knowing when to stop the search for a will following the death of a loved one is a tough call, Toronto litigator Matthew Urback tells AdvocateDaily.com.

Urback, associate with Shibley Righton LLP, says it’s surprisingly common for uncertainty to reign among family and friends about whether the deceased actually left a will behind.

“It’s almost like proving a negative because you’re searching for something that you’re not sure actually exists,” he explains. “That means it’s hard to know when to throw in the towel.”

Each case is unique, but Urback says potential beneficiaries should be guided by their own judgment, based on their knowledge of the deceased.

“If it was someone who kept all their money under the mattress, then you’re going to have a different threshold than if it’s someone who was highly sophisticated in terms of seeking professional and financial planning advice,” he says.

If a person had a close relationship with a particular lawyer or law firm they would turn to frequently for advice, Urback says that’s the first place family and friends should check for a will.

However, he acknowledges that not everyone seeks legal advice to draw up a will.

“Other more obvious places include safety deposit boxes or any secure place in the home,” Urback says. “Next of kin will often search home offices and filing cabinets for anything that gives an indication of a will’s existence.”

Family and friends could also check with anyone previously granted powers of attorney by the deceased, or with their other professional advisors, such as an accountant or financial planner, and some testators may have registered a will with the court.

“It’s more art than science,” admits Urback, who says that may change if a recent initiative takes off province-wide. The County of Carleton Law Association’s WillCheck is a will registry for residents of eastern Ontario and their lawyers to deposit information about drafted wills. The program is designed to make the lives of trustees and testators easier.

“The idea is for lawyers to register the wills they have, so that the information isn’t lost in office moves or for whatever other reason,” Urback says. “It’s in its infancy right now, and there’s nothing required in Ontario yet, but if it catches on, that would be a quick and easy way to check if there is something out there.”

For testators, Urback says it’s a good idea to let a trusted person know about a will’s existence, as well as its location, particularly if it was drafted without the help of a lawyer.

“You don’t have to divulge what’s in the will, but you can let them know where to find it,” he says.

Failing that, Urback says testators should leave the will in an obvious hiding place, such as an office or with other important personal documents.

“The whole point of a will is for it to be found and give you some say over what happens to your assets,” he says.

A will offers testators a measure of control over their assets even in death, Toronto litigator Matthew Urback tells AdvocateDaily.com.

“In your lifetime, you have the ability to use your property and spend money however you see fit,” says Urback, an associate with Shibley Righton LLP. “I would suggest most people would want to see that authority continue in death.

“If you don’t make a will, you’re basically leaving the allocation of your assets to the law,” he says, noting that Ontario’s Succession Law Reform Act (SLRA) sets out strict rules for the distribution of an estate when a person dies without a will.

According to the law, the deceased’s surviving spouse gets the first $200,000 from any estate, with the remainder divided through a formula between the spouse and any surviving children. When there is just one child, the remaining assets are split equally with the spouse.

If there is more than one child, then the spouse gets one-third of the amount over $200,000, and the remaining two-thirds are divided equally among all the children.

However, the SLRA does not take into account the individual circumstances of the deceased, Urback says.

“If you want to make decisions that are different from the breakdown under the law, then the only way to exercise any form of control is to make a will,” he adds.

One of a testator's most important decisions is their choice of executor, says Urback.

“This is the person tasked with carrying out your wishes, and they will have some big decisions to make,” he says. “Some people like to name someone who was very close to them, while others prefer to pick someone who is savvy with money. Another option is to choose a lawyer or a trust company.

“A great deal of thought needs to go into making the right choice, which will depend on each individual’s personal circumstances,” Urback adds.

After that, he says testators should turn their focus to the details of who gets what.

“When you’re preparing a will, you have a lot of flexibility,” Urback explains. “Some like to make specific gifts to friends, family or charities, while others prefer to split the estate into shares and name the people entitled to each portion. Or, you can do some combination of the two.”

Although he recommends testators visit a lawyer to ensure their will reflects their wishes, Urback says it's possible for people to put together a less formal version, known as a “holographic will.” As long as they are entirely handwritten by the testator, these wills are exempt from the statutory requirement that a will be witnessed.

“If it’s typed out, it needs to be signed and witnessed by two people who do not benefit under the will,” he adds.

Dying without a will may have unintended consequences on one’s family members, Toronto wills and estates lawyer Matthew Urback tells Law Times.

Urback, an associate with Shibley Righton LLP’s Toronto office, says that without a will, one’s estate is then divvied up by the courts based on governing legislation and the personal situation of the deceased. But that process, he says, may not be what the deceased person would have wanted.

Another problem with not having a will, says Urback, is that the person probably didn’t take advantage of any tax-saving opportunities, which will likely mean that there will be less left over for beneficiaries.

“People should be entitled to deal with their assets in death as they are in life — basically, however, they want. But if you don’t have a will, you’re not taking advantage of that right. That means someone else is going to make that decision for you,” he says.

If there’s a family member willing to represent the estate, Urback says that person will have to apply to the court for a “certificate of appointment of estate trustee without a will.” But if they never discussed estate planning with the person, they won’t be much help in posthumously determining wishes.

Law Times says an online poll by the Angus Reid Institute revealed that 51 per cent of Canadians don’t have a will.

“It found that those aged 55 and older are nearly four times more likely to have wills than those between the ages of 18 and 34 and twice as likely as those between the ages of 35 and 54,” according to the online legal publication.

Accounting for digital assets is becoming a bigger part of estate planning as people do more and more online, Toronto litigator Matthew Urback tells Law Times.

“I haven’t seen it addressed all that much yet and I think it’s something that’s going to become a much bigger issue than it already is in the coming years just because of the prevalence of digital assets,” says Urback, a civil and commercial litigator with Shibley Righton LLP’s Toronto office.

The assets include email and social media accounts, says the online legal publication, noting that “many people fail to identify those parts of their lives in their estate and risk the loss of control over their online identity as well as accounts that could have some significant value.”

The largely paperless, online assets could also include valuable ones like cryptocurrency, and if the owner doesn’t specify where the assets are and how to access them, it’s like they don't exist, says Urback.

“It might be worth it to appoint an executor, an estate trustee that is exclusively in charge of all your digital assets and all of your electronic holdings,” he says.

“If you lose it, you lose it, that’s it. So, you’ve got to make sure you’re passing on that information ... so they can access it after you’re gone,” Urback says.

“Whoever you’re putting in charge of all of that, especially if you have a lot of Bitcoin, you’re giving them an immense amount of power.”

And he warns against putting access information in the will since it’s a public document. Instead, Urback suggests giving that information directly to the executor.

While it’s important to ensure powers of attorney properly deal with a grantor’s wishes, fear of potential fraud can stymy the whole process, Toronto litigator Matthew Urback writes in the Financial Post.

“Financial institutions are right to be concerned about fraud, especially when a power of attorney is involved,” says Urback, an associate with Shibley Righton LLP’s Toronto office.

“That is because a power of attorney is a tremendously powerful document that gives another person the authority to act on one’s behalf. The grantee of the power of attorney gains the almost complete ability to manage the grantor’s financial affairs, and so banks need to be vigilant about ensuring that person is indeed authorized and fit to carry out such a responsibility in the interests of the individual,” he says in the article.

“Banks can refuse to accept powers of attorney for a number of reasons: the document may be too old, lack clarity, or fail to conform to a bank’s internal policies.”

Urback says he’s found a few cases where “it appears as though common sense has taken a backseat to unnecessary caution.”

“For example,” he says, “I was recently involved in a matter where a financial institution received a power of attorney under what they considered suspicious circumstances. To satisfy their own doubt, they asked that the individual who granted it get a capacity assessment.”

Although the person passed, the bank still rejected the document, says Urback, which can cause all kinds of problems and leave an individual’s affairs in limbo.

While prudence is important, he wonders if we’ve become “so risk-averse that common sense no longer applies?”

Urback says the key to preventing disputes is acting early and clearly.

“The first level of responsibility falls on the individual and the family,” he says. “Powers of attorney are more effective when prepared early, and when there is no question as to capacity. Waiting too long creates uncertainty.

“Lawyers should also encourage early drafting of powers of attorney. This way, if there is a problem identified by the bank, or by an advisor, there is time to fix it.”

Banks and others in the financial industry have a legitimate fear of getting sued, so Urback says it’s helpful for lawyers to talk to these professionals when drafting a power of attorney and discuss concerns in advance.

“The next level of responsibility falls on the professionals,” he says. “It’s time for common sense to make a comeback. Banks, financial advisors, and anyone acting on instructions from an attorney must be reasonable and flexible — to an extent.

“Consider the case of a contact of mine, who was acting as one of two joint powers of attorney for an individual, with the other power of attorney being located across the country. Certainly not ideal, but this was the reality. The first power of attorney could not conduct any business for the individual, because the bank would not accept anything without two signatures, both provided in person.”

With technological advances — and a little creative thinking, Urback says alternatives should be available.

“Banks and advisors should also be prepared to accept the representation of a lawyer, a doctor, or designated capacity assessor,” he says. “If a professional is willing to put their reputation on the line, should banks not accept their finding?”

Urback says a balance exists between protecting the public and “ensuring that real, legitimate powers of attorney are respected. All we have to do is find it.”

While legendary singers Aretha Franklin and Prince died without wills, there is a celebrity that set a good example for others to consider when it comes to estate planning, says Toronto wills and estates lawyer Matthew Urback.

“Paul Walker is that unusual case where he spelled out his wishes clearly. It’s especially interesting because he died so young and unexpectedly,” Urback tells AdvocateDaily.com.

Walker, best known for the Fast & Furious movies, reportedly drafted a will when his daughter was three, more than 10 years before his 2013 death in a car crash at the age of 40, says Urback, an associate with Shibley Righton LLP.

“He left a detailed will and instructions concerning his young daughter,” he says. “Getting a will in place early should be happening more than it actually does.”

Aside from his litigation practice, Urback also drafts estate plans and wills. He says many people who approach him for this service have recently had a child.

“Their primary concern is who is going to look after my child if something happens to me,” he says.

In Walker’s case, he left his estate to his daughter and appointed a guardian for her, according to a CBS News report.

When it comes to leaving assets to your children, many parents are now specifying the age at which the estate proceeds will flow to the child, Urback says.

“Some are deciding to delay the gift, and some are also giving out portions at ages 18, 21 and 25,” he says. “It’s a way to protect the child in case they aren’t ready to inherit a chunk of cash, and in Paul Walker’s case, millions of dollars. They may not spend it wisely.”

Urback says news that Franklin left no will and the chaos that can cause, along with a lengthy wait to divide assets, may provide an incentive for people to talk to an estate planner.

“People don’t like to confront their own mortality, but you must do so to get your affairs in order,” he says.

While each jurisdiction is different, Urback says if you pass away without a will, the way your assets are distributed is laid out by statutes.

In Ontario, the Succession Law Reform Act, states that the first $200,000 is given to the deceased person's spouse unless there are dependent children, he explains.

If there is no spouse and no descendants, the deceased person’s parents inherit the estate equally, says Urback.

“If you have no family at all, your assets go to the Crown,” he says. “If you don’t have a will, everything will be distributed in accordance with what lawmakers have decided, versus what you want to happen.”

That’s why Urback is a proponent of individuals speaking to their family beforehand about their wishes.

“It can be something that prevents a significant amount of stress down the road,” he says.

Urback is handling a case in which a child was not in the will, and the parent left everything to charity.

“It appears there was a falling out between the two,” he says. “The child is disputing the will, saying the parent didn’t have capacity at the time they signed the will.”

By talking about your wishes with family, it may prevent a future legal battle, Urback says.

“This example, and that of celebrities passing away without wills, should give the public reason to think about their estate plans,” he says.

Dying without a will means an estate will be dispersed among family in an orderly way, but not necessarily the way the person would have wanted, says Toronto wills and estates lawyer Matthew Urback.

The distribution of assets of a person who dies without a will, or intestate, is governed by a statute in Ontario called the Succession Law Reform Act, explains Urback, an associate with Shibley Righton LLP.

He tells AdvocateDaily.com the first $200,000 — known as the preferential share — goes to the spouse.

According to the Act, “the first $200,000 is given to the deceased person's spouse … Anything over $200,000 is shared between the spouse and the descendants (e.g. children, grandchildren) according to specific rules.”

Intestate succession of assets was in the news after singer Aretha Franklin died Aug. 16 without a will. Michigan law suggests her four sons should receive an equal share of the $80-million US estate, reports the Globe and Mail.

The intestate process is similar in Ontario and Urback says it's important to have a will so that a person's assets are distributed as desired.

"The difference is, with a will, you get to pick who you give your assets to," he says. "If you don't have a will, it's all based on statute and the law.

"The way it works is based on a whole chain, depending on who your relatives are," Urback says. "For example, if you have a spouse, if you have a spouse and one child, or if you have a spouse and more than one child."

If there is no spouse or children, then the person's parents are considered, then brothers and sisters, nieces and nephews, and "it goes all the way down the line," he says, adding that assets would go to the Crown if the deceased has no living heir.

"People have the ability to deal with their property however they want in life and, in theory, they are extended the same freedom in death," Urback says. "If you don't have a will, you're giving up that right."

He says if someone wants to do something specific with their assets after death, such as donate to a charity, they should have a will in place. Without it, "you have no choice, it's completely out of your hands," he says.

The law is in place to protect the heirs of those who have not completed a will, Urback says.

"It's meant to benefit your closest heirs and that's the good thing about it — that there is a system in place," he says. "It's a one-size-fits-all approach and it conceptually makes sense. But an estate worth $10,000 is quite different than an estate worth $50 million."

In other words, despite the statutes in place, it doesn't necessarily prevent next of kin from squabbling over the assets.

"It happens. It really happens," Urback says. "The will is helpful because it provides evidence as to what the deceased person intended. Without it, you have no evidence what the person wanted."

He says it’s "quite common" for people to die without a will.

"People don't like to think about it. They don't like to confront their own mortality," Urback says. "Many people don't have wills."

In fact, about 51 per cent of Canadians don't have a will and only about one-third have one that's up to date, a poll released in January reported. And Urback suspects, as baby boomers pass on, the number of people dying intestate will increase.

"It will be more of an issue in the coming years," he predicts.

The value of a will, however, is in the person's ability to control dispersion of assets as he or she sees fit. It also allows for the appointment of the estate's executor or trustee, Urback says.

"If you don't have that, people can apply to be your representative once you pass away, but who can apply is set up by the statute, so you have no control over it," he says. "You should have the freedom to do what you want with your money both in life and in death.

"It's all about control — controlling the choices you make with respect to your money and your property that you've earned throughout your lifetime," Urback says. "One advantage to having a will is that you're giving instructions about what you want to give to your next of kin."

Shibley Righton's Matthew Urback was interviewed by CBC Radio in Windsor about securing your online presence and legacy after death.

Please click here to listen to the full interview.

The dispute over the estate of Charles Manson offers lessons for testators with less controversial backgrounds, Toronto litigator Matthew Urback tells AdvocateDaily.com.

According to a report by NBC News, the fate of the notorious killer’s estate remains up in the air almost a year after his death, while a number of alleged heirs fight over the right to administer it.

While the law in California, where the Manson fight is playing out, differs from that in Ontario, it still offers guidance to future testators here, says Urback, an associate with Shibley Righton LLP.

“You’re always better off leaving clear and unequivocal instructions about your estate plan,” he says. “You know better than anyone what you want to happen to your assets, but if you don’t leave clear instructions, it leaves your loved ones with a bit of a guessing game to figure out what you intended, when you’re no longer around to clear up any confusion.

“The problem in this case is that nothing was clear. Manson had a will, but the circumstances around how it was made were a bit fuzzy,” Urback adds.

Manson died in November 2017 from heart failure at the age of 83, after spending almost 50 years in jail and having seen multiple bids for parole denied.

According to Forbes magazine, the claimants in the Manson case include a longtime collector of memorabilia related to the cult leader’s crimes, who alleges Manson signed a will naming him executor following their meeting in prison in 2002. The will reportedly granted the man Manson’s image and publishing rights, as well as proceeds from any royalties earned from the convicted murderer’s music.

Another man, who claims to be Manson’s grandson, disputed the validity of the 2002 will, while a third man, who claims to be Manson’s biological son, says he has another will signed in 2017 naming him as the sole beneficiary of his father’s estate.

The dispute even led to Manson’s body sitting on ice for four months while the parties fought it out over whether he should be buried or cremated, says the Forbes report.

Urback says he’s not surprised to see Manson’s estate attracting so much interest from potential beneficiaries, despite his infamy.

“One of the trends we see all the time, and that transcends the whole industry, is that money trumps all,” he says. “If there’s a chance of getting a little more money in your pocket, some people will do anything to make sure it happens.”

Family members must often make tough decisions when a loved one shows signs of incapacity, says Toronto wills and estates lawyer Matthew Urback.

In these situations, it’s helpful to have a capacity assessor talk to them, he says.

“They are trained and have the experience to evaluate if someone is incapable of making their own decisions or looking after themselves,” Urback tells AdvocateDaily.com.

“They are health-care professionals or social workers and they will usually conduct multiple interviews with the person.”

Urback, an associate with Shibley Righton LLP, says he hears from family members who are unsure about how fit a relative is to make daily decisions.

“The person in question may be able to complete some tasks, but not others.”

He says Ontario's Substitutes Decision Act can provide information regarding next steps.

“That legislation offers a roadmap for relatives seeking to have someone act on the individual’s behalf when it comes to property or personal care,” Urback says.

“It provides a process for the court to appoint a guardian of property, for example, when an individual is deemed incapable of managing.”

The guardian is then able to deal with banks and other financial institutions, says Urback.

“Banks are increasingly worried about fraud, so they cannot allow someone to act for an individual without legal authority," he says. "After a family member is appointed, they will then have a document they can present to banks or credit card companies.”

In order to obtain this document, an application is made to the courts, Urback explains.

“According to the Substitutes Decision Act, you must demonstrate to the court that the individual is not capable of managing their affairs,” he says.

The Act defines under what terms a person would be incapable of dealing with financial matters or their own personal care, says Urback.

Section 6 outlines when an individual is unfit to address property matters.

“A person is incapable of managing property if the person is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision,” it reads.

Section 45 sets out the test for incapacity to care for oneself, Urback says.

It states: “A person is incapable of personal care if the person is not able to understand information that is relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing, hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of decision.”

Urback says if quick action is needed to get legal guardianship, a capacity assessor’s report can accelerate the process.

“The court uses that material to help make the decision and it can speed up a ruling because there is third-party evidence.”

Lawyers should delay acting if they have any concerns about the person’s capacities, he says.

“They can even refuse to act until they get a better idea of the situation or to request an assessment,” Urback says.

If the client refuses an assessment, he says an application can be made to the court to appoint a guardian.

“The client is given the opportunity to respond if they are capable.”

To avoid court proceedings, he says it’s helpful to have a power of attorney in place while an individual is still of sound mind and can express his or her wishes.

“It’s always better to have control in these situations rather than leaving it in the hands of the court,” Urback says.

A claim of lack of capacity is a common reason wills are challenged and it can lead to a lengthy and costly legal process, says Toronto wills and estates lawyer Matthew Urback.

“It can sometimes be hard to prove a lack of capacity because everyone is assumed to have it regardless of their age,” says Urback, an associate with Shibley Righton LLP.

“The person making the challenge has to substantiate that allegation and it can be difficult to do,” he tells AdvocateDaily.com.

The reason it can be so tough to establish a lack of capacity is that the party making the challenge has to go back in time, Urback explains.

“The individual who made the will isn’t around anymore,” he says.

It’s challenging to prove something debatable, Urback says, and that’s when you see litigation and a drawn-out dispute.

Usually at the beginning of court proceedings, the party filing the challenge will seek an order to access mental and legal records, Urback says.

“It’s obtained early because if there is nothing in the medical records, that will quickly impact whether you have any evidence to go forward with.”

However, it isn’t always an easy or fast process, he cautions.

“You could be going back years and looking at a paper trail to determine the individual’s capacity.”

Urback says there are plenty of reasons for 11th-hour changes to one’s will.

“Many people re-visit their decisions in order to minimize tax or to look at charitable giving. It’s not necessarily because someone is tugging at their sleeve to update the will and include them,” he says.

If changes are desired, Urback says lawyers should question whether to act if they can’t get instructions because of the person's incapacity.

“Lawyers can send a client to a capacity assessment, which is usually performed by a health-care professional or social worker,” he says. “It’s a difficult exercise because clients can have bad days and good days when it comes to coherence.”

Urback says undue influence is another common reason wills are challenged.

“In this case, there’s a claim by an objector who doesn’t believe the will reflects the true intentions of the individual.”

He says there’s nothing wrong with someone trying a little bit of persuasion — or even begging — but it has to rise to a level of coercion.

Urback says undue influence claims frequently involve a person who has been close to the individual because a level of trust has been created.

If someone is challenging a will based on undue influence, it’s usually because they have been excluded or minimized in an updated version, he says. “The argument is that the will isn’t valid because it doesn’t reflect the drafter's true wishes.”

Urback predicts the number of will challenges will likely rise in coming years as the population ages.

“Based on demographics, seniors will make up a larger proportion of the populace,” he says. “Due to numbers alone, we’ll see an increasing number of these cases.”