This is definitely dating myself, but in thinking about this blog I was unable to get Jon Bon Jovi’s “It’s My Life” out of my head (check it out on YouTube here). Sorry for the earworm!
Mr. Bon Jovi (we’ve never met, so I’ll not call him Jon just yet) makes a couple of points that are applicable to your estate planning. It’s your life, and it’s now or never. This blog deals with the first point – it’s your life.
Often, we consider everyone else’s thoughts, opinions, expectations, and needs when making our estate plan. This is not a bad thing, and in fact, the ability to understand the expectations and “moral claims” of the people who would normally expect to benefit under your will is one of the elements of the legal test for capacity to make a will (as set out in the English case of Banks v. Goodfellow (1870) L.R. 5 Q.B. 549, the other elements being the ability to understand the nature and effect of making a will and the ability to understand the extent of the property which is subject to the will).
It is important to consider the expectations of the people who would normally benefit under your will, as well as those (whether reasonable or not) of any of your loved ones or friends based on your relationship, taking into account what you may have said, or perhaps even “promised” or held out, to them in the past, or their wishes and desires.
These are important considerations, and not to be set aside lightly. It is also important to discuss these potential and actual expectations with your estate planning advisors too, so that any future claims can be anticipated and, to the extent possible, planned for to avoid future disputes.
However, it’s your life and your estate you are planning for, and you are entitled to make your own choices regardless of anyone else’s opinion or expectations.
The law provides for certain constraints in making your choices (if you, for example, do not provide for legal dependants there are consequences, as discussed further in our blog, “Can You Disinherit a Child? A Survey of Testamentary Freedom Across Canada,”) about testamentary freedom across Canada), but you are still entitled to put in place any plan which you believe is appropriate and in accordance with your wishes.
You are the ultimate judge of what is, or is not, right for your estate plan, and your wishes should be the ones that are implemented to the fullest extent possible in any legal documents you sign.
Listening to any well-meaning advice can be helpful. But no one should try to put undue pressure on you to make a will that they want you to make, for example, to favour them over other potential beneficiaries, and no one is entitled to demand that you make gifts to them or appoint them as your executor or attorney for property or personal care.
If you are being subjected to such pressure tactics, you can seek help (for example, from Elder Abuse Prevention Ontario).
In the end, as Frank Sinatra said, you should do it your way, and you should find professional advisors who are prepared to assist you to do so.
— O’Sullivan Estate Lawyers