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Wills: the what and the why?

2/14/2021

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Why have a will?
A will is a legal document that details your wishes for how all of your property, whether personal or real, is to be treated after you pass away (called an "estate"), and optionally funeral arrangements. When properly signed and witnessed, a good will provides peace of mind for you and your family, ensuring that there are no disputes or uncertainties about how your property is disposed of, or what your final wishes were.

Without a will, you are deemed to have died intestate, which means all of your property will be disposed of according to government regulations; this is usually a very slow and inefficient process, that will leave your loved ones with far less than they might have.

Of course, a will has to be accepted as valid in the first place in order to achieve these goals.
There are a number of requirements for a will to be valid, and they have to be met to be accepted by the  courts (in a process called probate, usually required for estates) and the beneficiaries (those who will inherit the property described in the will). A will written on one's own can be disputed in a number of ways, such as by casting doubt on the writer's capacity (i.e. they were not capable of making decisions on their own, either due to a medical condition or due to emotional, financial, or other pressure from a potential beneficiary).

With a lawyer's help, a will can be both detailed enough and proven to be drafted with the person's true wishes in mind; a lawyer determines that there is no disability or pressure on the will writer (called a testator). A lawyer can also help you to anticipate certain scenarios that could cause a dispute; what if a person named in the will dies before the testator? Who does property go to in that case? What if the person named as executor dies, or refuses to act? A well-drafted will has alternatives for all of these situations, preventing lengthy, stressful, and expensive court battles.

It is also important for a lawyer to draft the will, as they are best informed about both recent changes to legislation and regulations (which free guides often neglect), as well as making certain that the language of the will is unambiguous and clear about the testator's wishes. A lawyer can also advise you on when you should write a new will to avoid changes in your life making it invalid. In addition, lawyers will advise you when there are more complicated issues at hand, such as if some of your property, or your beneficiaries, are in foreign jurisdictions, which may have their own laws conflicting with those of Ontario.

There are other documents that lawyers often prepare alongside wills, called Powers of Attorneys, as well as living wills. These have the same requirements of witnessing and signatures as a will, but deal with somewhat different subject matter, and will be the subject of a future blog post.






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Real estate: Working with a lawyer

2/4/2021

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A real estate deal is often the largest transaction, whether purchase or sale, many people make in their lives, and issues in the process can give a great deal of financial and emotional stress. Obligations to the other party, to government regulators (such as land transfer taxes), financial institutions, and insurance, make it much more complex than buying and selling of other goods usually is. The process can involve a number of different professionals; realtors, mortgage brokers, home inspectors, tradespeople, tax professionals, and lawyers.

Thankfully, with an experienced lawyer's help, the process can be made much smoother and you can have far more peace of mind up to and after closing. You can make this much easier if a few basic steps are followed.
Whether you are purchasing or selling the property, be aware of the following:

  • Tell the whole tale: Why are you buying or selling? Have you owned a home or other property before? How is the transaction being financed (is money being borrowed from a bank or someone else? Disclosing any possible problems to a lawyer as soon as possible is the best way to deal with them. Earlier knowledge leads to earlier solutions. Telling the lawyer as much as possible about the property in question (and providing supporting documents) will guarantee an easier time for all involved.
  • Keep your lawyer in the loop! Update the lawyer on major milestones, such as plans for securing funding (if necessary), telling them when the property is vacated and for how long, if there are any physical problems (anything significant enough to require paid work to fix, in general), timing of home inspections and visits, etc. During consultations and later communication, the lawyer will let you know which are your responsibilities (updating addresses, property tax information, accounts for hydro, heat, et.c) and which are the lawyer's.
  • Ask questions if you are not sure! Whether meeting the lawyer in person, or going over documents electronically, feel free to ask about anything you read that you do not understand. In many areas of law, but especially in real estate, contracts and other important documents are often written using  technical, and even old-fashioned vocabulary, obscuring meaning to anyone but experts. This does not have to be the case; ask if you have questions!
  • Provide requested documents as soon as possible. For example, in order to verify identities and reduce the use of real estate deals in criminal activity, lawyers are required to keep scans of ID documents provided by a client in our files. Similarly, we need to be made aware of any amendments to the Agreement of Purchase and Sale as soon as possible, as there may be knock-on effects on all aspects of the purchase. This is especially important when closing dates are approaching, and certain time-sensitive actions need to be taken. Failure to be timely may result in a financial penalty being passed on to the client, or at the worst case, the deal being cancelled by one side or another, with litigation a possibility in addition to all the disruption caused by being suddenly unable to move in or out of a home as planned.
Many court cases begin as nothing more than accidental neglect of a seemingly minor issue.  A lawyer can help with dealing with sudden complexities and emerging issues, advising you on what actions to take, and just as importantly, not to take. Thankfully, the vast majority of transactions go off without a hitch, allowing you the to relax and enjoy your new home, or the profit from your sale.



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Temporary Travel to Canada

2/1/2021

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Disclaimer: this information is about entering Canada in normal situations; there are currently a number of restrictions related to the current pandemic (quarantine, test requirements), in addition to the below. These may change quickly and without warning. Visit CBSA, and Transport Canada, websites for the latest up-to-date info.

In ordinary circumstances, Canada welcomes millions of visitors every year, for business, tourism, or transit to another destination. Just as with permanent immigration, however, there are strict IRCC guidelines that have to be followed from an application, to actual entry and time spent in Canada.

Some travelers do not need a visa to enter Canada, as their countries are permitted to use electronic Travel Authorization (eTA). These are non-paper, web-based applications, used by routine and regular travelers who need to enter or leave Canada repeatedly for air travel. Depending on the expiration date of the travelers passport, they may last up to five years before renewal. Note that even these trusted travelers have to satisfy CBSA requirements to be allowed entry (for more details, see this blog post.)
Ordinarily, eTAs and visas are granted for a maximum 6 month stay in Canada at a time, though a longer request may be granted if there is no reason to deny it (and with special exceptions such as super visas, which are a topic for a different post). Passport expiration is an important limitation; IRCC will not grant stays longer than a passport remains valid, which is why it is important to check the date and renew it if necessary.
When examining an application, IRCC examines for admissibility, the purpose of travel, and ties to the home country. (The below are just broad guidelines: speak to a lawyer before making an application!)

  • Admissibility: does the person have a serious criminal record, medical issues that would burden the Canadian healthcare system, a lack of finances to pay for their stay?
  • Purpose of Travel: is the person traveling for the reasons they claim they are? Where will they stay and what will they do in Canada? Is there supporting evidence?
  • Ties to country of origin: Can the person prove that they are going to leave Canada when their visa expires, and that they won't attempt to remain without authorization (overstay the visa)? What reasons does the person have to return home (family members, employment, property ownership , culture)?
These requirements can be met with strong documentation, such as proof of life in a home country, itineraries and tickets for invited events (and especially invitation letters from a Canadian). Making sure that the evidence is strong and well-chosen can be more difficult than it seems; sometimes IRCC will ask for additional information, slowing down the process further. Especially in more complex situations, such as a previously rejected application, it is important to have experienced counsel advising you and assisting with the application. No application is guaranteed to be accepted, but it will benefit from going above and beyond the minimum requirements that IRCC publicizes.

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    This blog details the many legal issues among Luka's practice areas, for a general audience. None of this information is a substitute for legal advice.

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