KJIPUKTUK (Halifax) – What’s more awkward than talking about your will? Despite death being inevitable, many of us have no plan for our last wishes, and no legal protection to preserve them. The COVID-19 pandemic has highlighted that we can die at any time, so we should prepare accordingly.
While will writing is not something people really want to think about, the absence of a will has potential to cause tensions for loved ones during a time of grieving. DeRico Symonds wants to change that.
“It’s an uncomfortable conversation and awkward, but it’s also necessary to have,” Symonds said.
Symonds, who has spent more than 15 years working with at-risk youth and racialized communities, says he’s seen people in his community passing away without a plan for their wishes and desires.
He helped launch GameChangers902 in June 2020 as a platform to mobilize meaningful change through the power of education.
“Our mission is simple but also challenging,” Symonds tells the Nova Scotia Advocate. “Our mission is to change the game of life for marginalized and racialized communities, and to provide equity, balance, and advocacy.”
Catherine Watson Coles and Susan M. Johnson, both lawyers at McInnes Cooper, facilitated the workshop on Wednesday evening. The law firm has partnered with GameChangers902 to provide workshops and legal advice in an accessible way.
As part of the collaboration, McInnes Cooper offers a program with GameChangers902 to provide pro-bono legal services related to wills and estate planning. Watson Coles encourages those who could benefit from legal counsel to find out if they’re eligible for the pro-bono program.
“One of the goals behind our partnership is to provide legal counsel to members of the BIPOC community who might otherwise have a financial impediment to accessing those services,” Watson Coles said.
The execution of the estate is an antiquated process, according to Watson Coles, as it benefits the old-school, stereotypical nuclear family. She encourages looking into special circumstances for will execution.
“There are blended families, same-sex families, single-parent families, families where there are beneficiaries who have disabilities, or perhaps mental health or addictions issues,” she said. “The law itself doesn’t really speak to these circumstances well, yet.”
The lawyers refer to three “key ingredients” to developing a will: plan for incapacity, plan for death, and estate planning.
“In some generations past, these are the kinds of topics people didn’t talk about,” Watson Coles explained.
Individuals developing a will can designate a power of attorney, someone who would deal with your finances if you lose mental or physical capacity. The power of attorney is enduring, meaning it lasts throughout your incapacity.
Substitute power of attorneys may also be designated. They serve as a back-up, in case the first person is unable or unwilling to act.
What happens if you don’t put a will in place?
“If you have a period of incapacity and you have not named a financial power of attorney, then there is nobody who has any power to deal with your financial matters, including banking, paying the rent, dealing with your house,” Watson Coles warns, “There’s nobody who has that power, not even your spouse.”
Without a will, the family of the deceased individual has to apply to the court to have someone named executor. This process is very expensive and typically takes a couple of months, according to Watson Coles. Not only does this create discord amongst loved ones, “the person who lost capacity also lost the opportunity to choose.”
“Planning for death is about making sure your family and loved ones are taken care of,” Watson Coles says.”
For African Nova Scotians and Indigenous communities, land title issues can affect multiple generations.
“Our goal is to make sure that communities, and especially racialized and marginalized communities have the most up to date information available, so that you’re able to make the most informed decision when planning a particular event, and getting a will in order,” Symonds said.
“It’s better if your executor knows you well,” Watson Coles explained, suggesting a friend or family member you trust, as “they would make the kind of decisions you would make.”
Being an executor is something most people only do once or twice. While there are professional advisors, the key duties can be carried out by a family member or friend you trust.
“If you die without a will in Nova Scotia, your assets will be distributed by the legislation set out: If you’re survived by a spouse and children, they will all share the assets,” Watson Coles explained.
Common-law partners do not apply, and would not receive any assets from their spouse by default. There’s also no executor, who is authorized to take over and manage a property, forcing families to ask a court to make that determination.
Without a will, any guardian you’ve assigned to your child in case of incapacity is not considered legal.
A will also dictates your wishes regarding burial plans, including whether you’d like a funeral or a cremation. It also allows authorization for organ donations.
Executing your will
“Your will is not valid until you’ve assigned it or executed it,” Johnson said. A will must be executed in writing by an adult with testamentary capacity (i.e. you know what you’re doing), and signed with a witness. Johnson says witnesses are typically individuals who are not stakeholders in the will.
Usually, a will must be signed in-person, but the COVID-19 pandemic has allowed for more virtual executions.
Johnson suggests reviewing your will when circumstances change, or every 3-5 years, though your will can be amended at any time, provided you can prove testamentary capacity. Updating a will regularly ensures its in accordance with changes to will legislation.
Executing a will limits the opportunity for individuals to challenge your wishes posthumously. Some common challenges to the validity of a will include “improper execution, lack of capacity, undue influence, and marriage.”
“Generally, marriage will invalidate your will,” Johnson said. Dating couples who want their wills to remain the same should invoke an “in contemplation of marriage” clause in the document.
“Divorce is slightly different,” Watson Coles said, “because it voids any appointment of the former spouse as executor, or any gift to the former spouse.”
DIY will-kits, Johnson and Watson Coles say, are more prone to legal challenges, and should be avoided at all costs.
“We see lots and lots of problems with will kits,” Watson Coles says, with two categories being most concerning: the use of language, and improper execution.
“We find the will kits aren’t as precise and often we see will kits filled out in ways that could be interpreted in two [or three] different ways … and that always causes a problem.”
Will writing doesn’t take much time, according to Watson Coles, with typically only two required meetings. Costs can vary for will writing with complexity. A typical will with all personal directives and guardian appointments costs around $1,100.
The workshop, which Symonds calls “short-term education for long-term benefits” can be viewed in full on GameChangers902’s Facebook page.
“We really believe that education and knowledge is power, because the more that you know about something, the more that you’re educated about something, the better informed decision you’re able to make in order to rectify change or curb certain situations affecting community,” Symonds said.
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