One advantage relates to the guardianship of minor children. If a testator has a child (or children) who is under the age of 18, the testator’s Will should include a provision appointing a guardian of such child in the event that the child’s other parent predeceases the testator or dies in a common disaster. If the child’s other parent survives the testator, he or she automatically has custody of the minor child unless the parents are separated or divorced and sole custody of the child has been awarded to the testator.
It should be noted that, pursuant to the Children’s Law Reform Act, R.S.O. 1990, c. C.12, a provision in a Will naming a guardian is only effective for 90 days following the testator’s death. The named guardian will have to make an application to the court within that 90-day period to have the guardianship appointment confirmed. Still, the appointment in the Will is very strong evidence of the testator’s wishes. Generally, the court will allow the guardianship application of the appointee unless some contesting party can persuade the court that it is not in the best interests of the child to grant guardianship to the individual named in the Will. If there is no Will, however, then there may be no clear indication of the deceased’s wishes regarding guardianship. This will make the court’s task of appointing a guardian more difficult and perhaps increase the likelihood that someone other than whom the deceased would have preferred will be named as the child’s guardian.
Another benefit of having a Will which pertains to minor children is the creativity and flexibility that a Will provides in terms of providing for those minor children. As discussed in an earlier blog entry on “Intestacy”, where a minor child (under 18 years of age) of an intestate person is entitled to a share of the deceased’s estate, such share must be converted into cash and paid into court to be administered by The Office of the Children’s Lawyer. If any money is needed for the minor child’s benefit before the child turns 18 years of age, an application must be made to The Office of the Children’s Lawyer by the child’s guardian. The child’s share of the estate, or any remainder thereof, will be paid outright to the child as soon as he or she attains the age of majority.
The shortcomings of the above process are numerous and obvious – they include the inability to maximize the value of the assets, the inability to provide the child’s guardian with freedom to determine how best to benefit the child, and the inability to prevent the child from inheriting his or her share of the estate at an age that most people feel is too young to make independent and sound decisions. With a Will, however, a testator may establish a trust for a minor child and postpone the distribution of the child’s share of the estate beyond the age of majority to whatever age or ages (there can be multiple distributions) that the testator feels is appropriate. As well, the trustee may be authorized to make whatever payments out of income and/or capital to or for the benefit of the child that the trustee, in an absolute discretion, deems appropriate.
We will continue discussing the most important benefits of having a Will in the next entry – as I advised above, there are a great many of them. Thanks for reading “The Estates Nutshell” – questions and comments are very welcome at estates@cklegal.ca.