Wills and Estates

Special rules apply to lawsuits involving people who suffer from a mental illness and therefore lack capacity at law. Generally, children under the age of 18 and people who suffer from mental illness, including those who suffer from dementia, must be represented by a litigation guardian within legal proceedings.

Litigation Guardians assume responsibility for litigation on behalf of a litigant who lacks capacity. They assume the responsibilities of retaining and instructing lawyers on behalf of the incapable litigant, and they assume personal responsibility for any costs liability incurred as a result of a lawsuit.

However, the litigation guardian plays an essential role in ensuring access to justice for some of society's most vulnerable people. Without people agreeing to stand as Litigation Guardian, people who suffer losses could be left without recourse to the courts. Generally a lawyer works very closely with a litigation guardian to ensure that risks are properly understood and that measures are put in place to minimize personal exposure.

If you are asked to stand as a litigation guardian you should consult with a lawyer before deciding whether or not to stand.

Your last will does not have to be drafted or signed by a lawyer. However, a will is a legal document that will determine who will have control of your estate and how it is going to be distributed. There are certain legal requirements that have to be met for the will to be valid. As such it is very important that your will is drafted, signed and witnessed properly.

A lawyer will ask you the right questions to help you determine how to distribute your estate while taking into consideration various contingencies and scenarios that might be in place at the time of your passing. She will discuss with you legal clauses that you might want to include in your will, such as a beneficiary designation for your RRSP and insurance policies, expressing your wishes in regards to the custody of your minor children, or confirming compensation for the executor.

Your lawyer will also make sure that your new will revokes all your previous wills or other testamentary documents, and that your will is properly signed and witnessed. Seeking and using such help will give you peace of mind knowing that your affairs are in order.

Yes, you do need a will. Whenever you don't have any children, under the statutory distribution scheme for individuals that die without a will, your spouse would receive your entire estate. However, you should still have a will for at least two reasons:

1. Appointing an executor of your estate — The executor named in a will has the legal authority to take possession of all your assets, do your final income tax returns, and deal with banks and government institutions. If you don't have a will, a court would have to appoint an executor, which usually takes a few months and incurs unnecessary costs.

2. Making instructions for the distribution of your estate in the event that you predecease your spouse — By having a will in place, you will make sure that your estate is distributed the way you want it to be. Under the statutory distribution scheme, if you have no spouse or children, your estate would go to your parents, and if your parents are deceased, your estate would go to your siblings. This may not be your wish. You might want to leave part of your estate to your spouse's family, or distribute the estate among your nieces and nephews, or make gifts to a charity.