Legal disputes are easily avoided if you draft a proper Will, with legal advice. Graphic by Lucy Barco

The right words are critical in making a Will

  • November 5, 2016

As the saying goes, words can hurt. That is especially true in a Will, where even the most minor of language mistakes can have a dramatic impact on how assets are split.

Angela Casey, a lawyer who specializes in Wills, estates and trusts, says that investing in a professionally-drafted Will can avoid potentially big issues for your loved ones.

“I’ve seen a number of disputes around the way a Will is worded,” said Casey. “You’re much better off, as a person who wants to leave a Will, to spend the money on a good, qualified lawyer to do a proper Will for you. Because if you don’t and your Will ends up in court, the cost is going to be so much greater.”

A case in point: Casey and her law firm, Casey and Moss LLP, is currently representing the Catholic charity ShareLife in a legal dispute over a section of a Will that might leave a significant donation to ShareLife’s Legacy for Life Endowment Fund.

Vague language, however, has led the executors of the Will to contest the intentions identified in the document and the case is now before a judge to decide.

“The issue is that the Will is confusingly drafted,” said Casey. “Read one way, it leaves a seven-figure gift to a major Catholic charity and read a different way, it leaves nothing.”

Casey said that although these legal disputes don’t happen often, they could have easily been avoided.

In almost 15 years of experience, Casey has worked with many charitable organizations that have faced a similar issue. When a person decides to leave a portion of their estate to a charity, the person must make sure that the proper legal title of the charity is clearly defined in the Will.

Quentin Schesnuik, manager of planned giving and gifts for the Archdiocese of Toronto, said that finding the proper legal title of a charity is very important to insure that the donation goes where it is intended.

St. Patrick’s parish, the National Shrine of Our Lady of Perpetual Help in Toronto, is one example where this can be particularly tricky.

“If a lawyer types in St. Patrick’s Parish in (the Canada Revenue Agency) website, nothing’s going to come up as a proper legal title,” said Schesnuik.

“Then, he’ll try to call our office and that’s a whole other conversation.”

The correct legal wording is the “Roman Catholic Episcopal Corporation for the benefit of St. Patrick’s Parish.” The Archdiocese of Toronto has eight St. Patrick’s parishes, so the proper mailing address or the charity’s nine-digit business number might also be useful to include.

The Canada Revenue Agency website maintains a master list of all registered charitable organizations. The list includes the charity’s proper legal title, its charity number and any other information that a person may need for identifying them in a Will.

“Sometimes, what happens is when people make a Will and don’t update it regularly, the charity that they wanted to give money to may no longer exist at the time of their death,” said Casey. “That’s something that the court can address, but again, it leads to legal fees and confusion after death because then people are left trying to figure out what to do with this gift.”

Casey said people should get started on a Will as early as they can.

“A lot of people just don’t want to think about their Will when they’re relatively young and healthy,” said Casey. “A lot of people wait until they’re terminally diagnosed or something to make the Will and then if children or people who expect to see a gift, don’t get one, they often allege that the person lacked the mental capacity to make the Will and that sometimes happens with charitable bequests, especially if the bulk of an estate is left to charity instead of family.”

Casey said the most important thing a person must do when drafting a Will is to talk to their loved ones about it, to avoid any confusion or conflict in the future.

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