Let's talk Wills & Estates with Amanda Groves

Amanda Groves hung out her shingle on Dundas Street in Waterdown, ON four years ago. As a lawyer, she had already gained extensive experience working for a few years at other firms in Southern Ontario specializing in wills and estates. 

Today at Groves Law she continues to practice in this area as well as real estate, corporate and commercial law. 

Van Hansen interviewed Ms. Groves in her office.

Hansen: I saw you posted a couple of weeks ago “Awake and watching the CBC coverage” (of the Coronation). 

Groves: Yes, oh my God, I woke up at four o’clock in the morning to see that. My mother-in-law is born in England, she didn't even wake up to watch it. Yeah, that was a long day. 

Hansen: And your Twitter profile shows that you are “Obsessed with the news. All of it. All the time…”

Groves: My favourite thing about Twitter is that you can follow individual reporters. So anytime there is a really big case in Ontario, you’ll have them live tweeting from the courtroom, as it’s happening. 

I will follow say four different journalists, and each will have a slightly different point of view on what the judge is saying. So it’s like an eyes on the ground perspective of what’s going on. 

Hansen: How did you get your start in law? 

Groves: Well, as a child I did well in school and I liked reading and I liked thinking and it was just a career that I kind of thought, gee, what can I learn if I stay in school for awhile?

And the nice thing about law is you can take anything in your undergrad as long as you do well enough and get into law school.

So I took history as an undergrad because I like learning about history and I'm glad that it worked out that I got into law school because I did not have a backup plan.

Hansen: What do you like best about your career now?

Groves: I really like the people the best. You meet a lot of different people, you see a lot of different scenarios that they are in and it's like having little peeks into their lives and learning what is important to them and what they value—so you can help them.

Hansen: I have some questions about wills and estates. The first is when should someone update their will?

Groves: I generally recommend people taking a look at their wills every five years—or if a major life event happens.

And if a client is not sure they can come in and we can determine whether or not they need to make changes at that point.

Wills don't expire they don't void out automatically so it's not like it's going to disappear on you. However, your will may not say what you want it to say now.

Consider if your executor is still people you talk to. Are your beneficiaries still in the same proportions you wanted the inheritance to go to? If you have a major life event, if you get married, maybe you have grandchildren, you want to put them in your will.

Those are examples of times where you might want to just take a look to make sure that it's still meeting your needs.

Hansen: In what situation would somebody need more than one will?

Groves: While most people have one will, there are circumstances where you might want to have multiple wills.

Now sometimes couples will ask if they can have joint wills. There is no such thing as joint wills; husband and wife for example each get their own wills.

Multiple wills is a probate (tax) savings tool. The probate fee is about 1.5% of the estate. When you have what’s called a non-probatable asset, it’s a way to potentially pay less probate fee to the court.

So if you have a certain type of asset like privately held shares, or say an artwork collection that you know will never require probate to be able to pass it on to the next generation—if you have a secondary will, you can put non-probatable assets into it, so if you have to probate the first will, you don’t have to include the value of those non-probatable assets in that secondary will.

So it’s really just a (tax) savings tool which is the number one reason why most of the time people would need multiple wills. 

Hansen: In the event that someone wishes to exclude a family member from their will, is there anything they need to do to ensure their wish is realized?

Groves: It always depends on the circumstances. So number one, if you are an adult that does not have any dependents, most of the time you can do what you want with your money.

Now if you have dependents for example minor children, or if you have a married spouse and you exclude your dependents from your will and the will is challenged the dependents would likely prevail, even if you are estranged or going through a separation—you have to leave them the equivalent of what they would be entitled to under a separation agreement.

If you had a non-dependent family member, say an adult child or sibling, parent, or someone who is not reliant on you for funds that you wished to exclude you can leave them out of your will, then it’s just a question of making sure you put yourself into a defensible position.

So sometimes what people will do is they will just leave that person out of their will, so they will draft it tightly, you know, I leave everything to child A and child B and then outside of the will we put a provision in another document that says, you know, I have deliberately not put child C in my will for reasons that are known to me or for, you know, estrangement or whatever language the client is comfortable putting in.

Another method is something called a forfeiture clause. So for example if you leave child A and child B the majority of your estate, but maybe leave a smaller amount, say $50,000 to child C, and then at the same time put a clause in your will that says forfeiture, which means that if any individual who inherited under your will argues your will, then they lose their inheritance. So therefore, child C, she has the option of either saying, okay, I take my $50,000 and run, or I take my $50,000, try to argue this in court, knowing if I lose I don't get my $50,000 anymore.

So this is an encouragement for them not to bring a claim there. 

Hansen: What does it mean to designate a power of attorney?

Groves: There are two types of powers of attorney (POA)—one is the power of attorney for personal care, which is the healthcare decision maker, and one is the continuing general power of attorney, which is your financial decision maker. 

Hansen: For POAs, how is timing an issue with regards to someone’s (legal) capacity?  

Groves: You have to have the capacity to be able to sign both those POA documents.

The person signing a document for the financial power of attorney, that's a higher capacity level than the healthcare power of attorney. However, there still is a level for both of those, and it's important to have those done while somebody has capacity to make them.

The number one reason is that if an individual loses capacity during their lifetime and they can't make financial decisions anymore, then there's no automatic person to take over those appointments.

What happens in that case is the public guardian and trustee (PGT), takes over that person's life. At that point if you wanted to step in place of the PGT to make decisions if your family member had lost capacity and the PGT took over, then you have to make an application to the PGT to be able to become the substitute decision maker (SDM) in place of the public guardian and trustee. That process is going to take months if not a year and it's going to be expensive.

And you would have to pay for a bond which is going to cost probably a couple thousand dollars if not a couple hundred dollars every single month that you're acting in place of that person.

On the other side if you do not have a health care decision maker the only way to be able to be appointed as an SDM for health care is to apply to the court to become appointed as a guardian of that person. So again, that is an expensive procedure and it's going to take a lot of time as well.

So if you just have the POAs set up ahead of time, then you already have the control of who your substitute decision makers will be. 

Hansen: What are some things to keep in mind when selecting your POA?

Groves: When it comes to the powers of attorney, I always recommend that you think of somebody who would be good for your money when it comes to the financial decision maker and someone who's going to be good for health care when it comes to the personal care decision maker. And it doesn't have to be the same person and you can also have multiple people, right?

So sometimes if you know you want to name your spouse first up and you have two kids as a second up decision maker, as long as your two kids get along you can name both of those guys to be your backup decision makers.

On the other hand, if your two children do not get along, you being in some kind of financial or emotional or health care crisis is not the time that they are suddenly going to be able to agree and make decisions for you.

You need to take a look at what your family dynamics are and pick the best people who are going to be able to advocate for you financially wise and advocate for you health care wise. 

Hansen: What is important to you outside of your work?

Groves: Outside of work I have really good friends, and my family is important. They live close by so we still do like Sunday dinner at my mom's house with my sisters and their spouses and their children. 

And my spouse, my animals, we have a dog and two kittens in my house. My husband and I are really into hiking. We have a little cottage and we like to go up there in the Summer and just kind of enjoy the outside time as much as we can and get as much fresh air as we can too.

Amanda Groves, JD

- Please note this story has been edited for length and clarity and is for information purposes only.     Always seek independent legal advice -

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Jen & Van Hansen are Real Estate Brokers at the boutique brokerage Apex Results Realty Inc. serving Halton | Hamilton, and surrounding areas. Say hello.. move forward with more™