Unique Will Story

Here is an interesting Will story.

In 1936 a rich Toronto fellow died. In his Will he made some specific gifts and left this direction regarding the balance of his estate: 

‘…at the expiration of ten years from my death to give [the balance] to the mother who has since my death given birth in Toronto to the greatest number of children as shown by the registrations under the Vital Statistics Act. If one or more mothers have equal highest number of registrations under the said Act to divide the said moneys and accumulations equally between them.’ 

Some mothers had several children during those 10 years. Some children were illegitimate sued to have their mother(s) included. The case hinged, in large part, on whether or not ‘children’ included illegitimate children. In late 1937 the Supreme Court of Canada ultimately decided ‘children’ did not include illegitimate children and the clause was valid.


I own land in the Township of Stirling-Rawdon. Part of the land is along a river and I want to make some of the water front land a separate cottage lot. It is in a really nice location. Trouble is, this part of my property is a long way from the nearest road. I have to make a laneway or a right of way over my remaining land from the road to the separate lot. I am on a tight budget. How good does the laneway to the separate lot have to be? Can I just clear the laneway area with a tractor or bulldozer and be done with it?

— Laneway land owner

Dear laneway: Township of Stirling-Rawdon land owners who permit other people travel across their land to access their cottage, house, farmland, hunting camp, etc. within the Township should be aware that the Township of Stirling Rawdon has a By Law (1044-14) requiring the travelled area to meet certain standards. Land owners have until 1 January 2025 to comply with the By Law and ensure the standards are met. Non-compliance has consequences such as denial, withholding or revocation of permits, certificates or other forms of authorization to use or develop any land, structures or property improvements. If this applies to you and you have any questions/concerns, contact the Township by phone (613-395-3380) or through the website, www.stirling-rawdon.com.

Real Estate Documents

QUESTION: I have listed my house for sale. The real estate agent, a great person, wants me to complete and sign a document that outlines a whole lot of information about my house. Most of the questions I don't understand and alot of the information being asked is unfamiliar to me. My agent said that without the document, the chance of getting a decent offer on my house is greatly reduced. What should I do?

Yours truly,

Confused but want to sell

Dear Confused, etc.:

Well, as you saw on the document, you are giving alot of information about your house to anyone interested in giving you and offer to purchase the property. You should speak to your lawyer before signing any document associated with the sale of your property. I cannot stress that enough although it rarely, if ever, happens. 

As for the document, you fill it out as best you can. You are providing the purchaser with ammunition to use against you if there turns out to be a problem with the house after the purchaser becomes the owner. You are also giving your real estate agent ammunition to use against you because there is now a record of what information you provided about the property to the agent. 

If you complete such a document, PLEASE make reference to it in the Offer (or Agreement) and specify that it is not intended to be relied upon by the purchaser. Yes, there is a statement to that effect on the document; however, most purchasers won't pay attention to it there and will, if questioned in court, likely say that they did not see it and no one told them about it. 

In order to have your liability for any statement you made about the property properly limited, bring it to everyone's attention directly in the Offer (or Agreement). While that may even not be 100% effective, at least it is a good indication of your intention and your efforts to inform the purchaser. As well, the purchaser has to sign the Offer (or Agreement). The purchaser does not have to sign the information document. Usually, we are held to what we sign.    

There is a bit of a controversy about that document. Check out comments and articles written by Bob Aaron, a well respected Toronto area real estate lawyer, at www.aaron.ca


I Don't Have Much. Do I Need a Will and Power of Attorney?

QUESTION: I just live on a pension in a rental apartment. I don't really have much. Do I need a Will and Power of Attorney? 

Senior Citizen

Dear Senior Citizen,

One of the best gifts you can give to your family, is to take a little time to make things easier after you are gone or unable to handle your affairs. 

Even if you don't have many assets, there will be matters to look after when you're gone. Your executor is the person you pick and designate in your will to arrange for your funeral, to receive and distribute your personal items and your final cheques. 

If, as you grow older, you become unable to handle your financial matters, it is important that you have chosen the person you want to do it for you. The person you pick in your "Financial Power of Attorney" will then be in charge. If you don't have a Power of Attorney, the Government, through the Public Trustee, will become involved, or your family will have to go to Court to get permission to take the job on. 

Death is one of the two famous inevitabilities. Do you want to be kept alive on a machine or let go mercifully? You may wish to put a "Living Will" provision in your "Personal Care Power of Attorney", to let your family know your thoughts. Believe me, they will be glad to know how you feel on this issue, instead of being left wondering if they did the right thing.


How To Beat Lawyer's Fees

QUESTION: Legal fees seem so high sometimes. Once you start paying, it seems you don't have any idea where it will all end. I want to save. Can I safely do my own will? Or a sale of my cottage? 


Dear Cheapskate,
You may think that, as a lawyer, I'm somewhat biased, but I think that even legal fees can be good value. This is particularly true of the two examples you use.....a will and a simple sale. 

Yes, it's conceivable that you could do it yourself, but most people cannot. Some can fix their cars, but most of us can't and would be better off if we decided not to try and end up in a worse mess. 

Being a Country Lawyer, I often have to deal with "homemade wills". I remember one where a fine old gentleman wrote that "my house and contents goes to my wife and everything else to my son". He probably felt that he had done his will successfully and saved $100.00 in legal fees. 

The problem was that he kept his money in a jar in the kitchen. Naturally his wife thought it was "contents" and his son thought it was part of "everything else". What the old gentleman thought, no one knows. His family had to get different lawyers, and each spent much more than had been saved by a "homemade will". 

A property sale is even more complex and trying to do it yourself may be like deciding to fix your Jaguar yourself. Most cottage sales may be completed by a lawyer for $650.00-$900.00, depending on what issues have to be resolved, explained, etc. Don’t forget HST and disbursements either! Ask for an estimate, no one should come close to guaranteeing a price without knowing what is involved. It is your cottage, your refuge, your retreat….you do not want the peace spoiled by a neighbor or someone else claiming rights over a portion of your property or you not being able to do what you want to do with the property or even suddenly not being able to access the property.

You're right that on other matters legal fees can seem to grow and grow. As I tell my clients, lawyers don't sell shoes or groceries. We sell time and services. When it comes to litigation, it is often impossible to tell how much time a case will take. Hence the dreaded hourly rate - hundreds of dollars per hour. 

For the most part, I prefer to send litigation clients on to an expert. We are often asked to stay involved on a consulting basis, just to be sure that everything continues on track and in an understandable manner. 

Even if the final bill can't be determined, you are entitled to an estimate, and to know how far in you are at any one time. 


How to Beat Probate Fees

QUESTION: With all the publicity about Probate Fees, I'm wondering if I should be putting my children's names on all my assets. That way, when I die, it will go directly to them without the government getting its bit. 

-Tax Fighter

Dear Tax Fighter,
The government is pretty good at getting "its bit". Sometimes trying to avoid tax can leave you outsmarting yourself. 

Suppose you decide to put little Johnny on the deed to your house. Yes, when you pass away, you will avoid the Probate Fee, but have you thought about the following? 

1. You won't be able to sell or mortgage your property without his consent. If you need to get your money out, you better hope you're still getting on with Johnny! 

2. If Johnny gets sued or into a family dispute, his creditors or spouse may argue that his half of the house is one of Johnny's assets that should be used to pay his debts or settle his divorce. 

3. If Johnny doesn't live there, its not his principal residence for tax purposes. If the two of you sell it, he may be responsible for capital gains taxes on his half of any increase in value since he went on title. 

4. If you are getting a Senior's Tax Rebate on your property taxes, technically that would be canceled on Johnny's half - unless he's a senior, too! 

5. If Johnny goes bankrupt, or has to rely on Welfare or a Disability Pension, it is possible that the authorities would require him to sell his share of your home. 

WOW! All these problems to think about just because you want to avoid a Probate Fee that really isn't so much anyway. For example, Probate Fees on a $100,000.00 estate are $1,375.00. 

REMEMBER, Your own circumstances are unique and, perhaps for some, the transfer is a good idea, but proceed carefully.....you might just outsmart yourself instead of the government!

Few Things to Consider

  1. These Home Inspectors who will do a great job for you!! I recommend a home inspection to all prospective purchasers. Remember that an inspection is a snap shot of the house at that time of the inspection. The inspector will report only on what is seen during the inspection. There will be no moving things around or opening things or destructive testing. The inspection report will give you some wonderful information on the property as well as great general information on home maintenance. It is money well spent, as is money for your legal services. You and the inspector are guests of the home owner - remember that!!    

    1. www.allaroundthehouse.com 

    2. www.knowyourhouse.com

    3. www.fultonhomeinspections.com

  2. If you are considering buying or selling a house, farm, vacant land, commercial property, always check with a real estate agent first. They are tremendously helpful with all aspect of buying and selling real estate. You won't be sorry!! I will soon have some links for sites of real estate agents with whom we work quite closely. Until then, please contact me for referral information.