Can a person dispose of property by Will in any way he or she wishes?
Yes, with some exceptions. For example, a dependant may claim a share of the estate if he or she is not adequately provided for in the Will. Also, the maker of the Will may have entered into agreements during his or her lifetime that restrict the disposition of his or her property. A surviving spouse may also claim an equalization under the Family Law Act instead of receiving the benefit left to him or her under the will, thus varying the outcome of the Will.

Can a Will be changed?
Yes, it can be changed or revoked by the maker any time before death if the maker is competent. A document changing a Will is called a “Codicil”. Depending upon the number and complexity of changes, it is sometimes preferable to prepare a new will.

What is the effect of marriage or divorce on a Will?
In Ontario, a Will is revoked by marriage unless the Will is stated to be in contemplation of the particular marriage. Unless a contrary intention is expressed in the will, divorce revokes the provisions in the Will in favour of the former spouse.

What about funeral arrangements, personal effects and organ donations?
A person can make their wishes for funeral arrangements and organ donations known to the Executor through the will but it is preferable to deal with these matters in other ways. Remember, the Will may not be carefully reviewed until after the deceased is buried. Personal and household effects can be dealt with in several ways. For example, the Will can provide for specific gifts, or can refer to a memorandum that is kept with the will but does not form part of the will. This memorandum sets out a list of beneficiaries and items that the testator intends to give to those beneficiaries. The advantage of the memorandum is that the list can be changed without changing the will. Because the memorandum is not part of the will, it is not legally binding on the Executor but only morally binding. In our experience, this has been a satisfactory and effective way of dealing with personal assets.

What is “Good Title”?

Good Title simply means that the house that you have purchased is yours and that there are no claims by any other parties against title or ownership to it. The title to your property has to be correctly described on the legal documents. These documents are registered and the title to your property must be searched.

What is a “Letter of Opinion”?

The traditional way in which we have always assured purchasers of Good Title is with an opinion on title. We provide our clients with a Letter of Opinion as to whether a purchaser has good and marketable title to the property. We only arrive at this opinion after completing a number of searches on your behalf. If we do discover problems, we will be in touch with you to discuss them.

If problems arise after closing and a buyer can prove that a lawyer did not do everything legally necessary to protect his rights, then the buyer can sue the lawyer for any losses and the lawyer is usually covered in Ontario by an insurance policy.

What is “Title Insurance”?

In recent years, the use of Title Insurance has been growing in Ontario. It is a second way of guaranteeing good title that is available to homebuyers. With title insurance, if a problem arises after closing, the purchaser will be covered for losses up to the amount of the policy. The amount of the policy will, normally, be equal to the purchase price of the home. Once the homeowner sells the property, the policy is no longer in effect.

What are the advantages of Title Insurance?

The advantages of Title Insurance include:

• If a problem does arise after closing, the purchaser will be able to recover losses through “no fault” insurance and the buyer does not have to prove that the lawyer was negligent.
• The purchaser is protected against mistakes by a third party, such as a municipal government giving incorrect information in one of their letters of reply to the lawyer’s initial letters
• If a survey is not available for a property and a purchaser does not wish to pay for such survey, then title insurance may save the costs of a surveyor, which routinely may run from $800.00 to $1,200.00.
• The cost of the Title Insurance policy will often be less than the cost of the disbursements which would normally be paid out as fewer searches are required by the title insurance company than would be required to give a title opinion.
• A major advantage of title insurance is the fact that the cost of the policy will often be far less than the cost of rectifying a particular problem that a title insurance policy would be prepared to insure against.

What are some things to consider?

Some things you may want to consider when purchasing a home are:

• Although a purchaser may be able to eliminate the requirement of the survey by a mortgage company, this does not change the fact that the survey could show existing problems with one of the neighbors such as the incorrect location of a fence.
• As with most insurance policies, the title insurance policy has exceptions and exclusions with its coverage.

What is the cost of Title Insurance?

Typically, the cost of a premium is approximately $150.00 for a condominium and $175.00 for a single-family home. This cost increases on properties having a value of over $500,000.00.

What if something goes wrong after closing?

When title insurance is used, if a problem is covered by the policy, a purchaser makes a claim directly to the insurance company. There is no need to hire another lawyer to prove the negligence of your own lawyer.

What is the role of my lawyer?

Your lawyer reviews the agreement of purchase and sale, prepares the legal documents such as the deed and mortgage, prepares affidavits and prepares all title insurance documents. Your lawyer also communicates directly with the title insurance company and purchases the insurance policy on your behalf.

Do I need a lawyer to complete my real estate transaction?

Yes, from a practical point of view. If you are purchasing a new home from a builder then your lawyer will want to discuss the terms of the Agreement of Purchase and Sale with you and provide a written quote as to your fees and disbursements. If certain disbursements are not clear on the face of the Agreement of Purchase and Sale, then a lawyer will request that the purchaser meet with the builders’ representative to clarify those amounts. These include items such as you new home warranty enrollment fee, water and hydro meters, the tree on the boulevard and other miscellaneous expenses that are typical in any new home contract. See the Article entitled “Buying a Home from a Builder”.

Your lawyer will also prepare all of the legal documents that are needed to be prepared in any home purchase.

As a purchaser, your main concern is getting what you have contracted for so that down the road there will be no problems. Most of what your lawyer does on your behalf ensures that you are getting good title on closing date.

Some of the things that a lawyer does during the purchase process are as follows:

• Check if there are arrears of utilities or municipal taxes;
• Search the title to your property;
• Search executions to see that there are no claims or judgments against the existing owners or the purchasers;
• Make sure that municipal by-laws have been complied with and there are no work orders outstanding; (this is often dealt with by title insurance);
• Inform the vendor’s lawyer of how you intend to take title;
• Send vendor’s lawyer a letter of requisitions detailing the items that need to be dealt with prior to the closing of the transaction;
• Review the statement of adjustments and other documents forwarded to your lawyer by the vendor’s solicitor;
• Discuss title insurance possibilities with you;
• Represent your bank in the transaction and in the preparation of all documents that will be required by the mortgage company;
• Oversee the preparation and execution of all of the necessary documents, including affidavits;
• Register all documents that are required;
• Discuss with you and calculate the land transfer tax;
• Arrange to have the keys to your home available to you;
• Provide you with either an opinion of title or a title insurance policy;
• Report to you with copies of your transfer, mortgage and other relevant documents.

This is far from a full list of all the items a lawyer does but it does give you an idea of the responsibilities that are carried out

Do I need a written quote?

No, you do not need a written quote. However, we would be pleased to provide you with such a written quote if you forward to us your agreement of purchase and sale. Usually these quotes are very accurate unless very unusual circumstances arise. With respect to purchases from a builder, it is often difficult to itemize the costs which the builder is passing on in an accurate fashion and it will be necessary for you to make inquiries with the builder’s representative so that the quote can be complete and you can budget accordingly.

Are there some matters that I need to be aware of concerning my legal transaction that you would feel are helpful?

Yes, there are. Here are some matters which we would draw to your attention:

Real Estate Agents - Whether you are buying or selling, you will probably be using a real estate agent. An exception lies in the case of where you are buying a new home and you will be dealing with a real estate agent or other representative of the builder. There has been a recent change in the law on real estate agents. In the past, real estate agents were all the agents of the vendor. However, it is now not unusual for real estate agents to be acting on behalf of the buyer and they are now under a legal obligation not to disclose confidential information that has been given to them by a purchaser. It is very important for you to remember that whether the agent is acting on behalf of the vendor or on behalf of you, as purchaser, the commission is still likely paid by the vendor.

• Survey - A survey is a document that shows what you own and gives you a clear picture of the extent of your title. The location of the buildings on the property will be shown on the survey and it shows the distance from your home to your lot lines and, in all likelihood, also shows all easements that are on the property. If your survey is up to date, it will show whether your neighbors have fences, driveways, or other encroachments that are partially located within the boundaries of your property.
• Title Insurance - For many of our clients, title insurance is the answer when a survey is not available or when there is some question with respect to the accuracy of the survey. Title insurance allows you to bypass the need for an up to date survey and the banks will accept title insurance rather than the copy of an up to date survey.
• Agreement of Purchase and Sale - The agreement of purchase and sale is a foundational document for any real estate transaction. It is a contract and has many legal ramifications. Once signed, it is the binding document on both parties. If you have an experienced real estate agent then he will have undoubtedly lead you through the terms of the agreement. If not, you certainly have the right to have your agreement of purchase and sale reviewed by a lawyer before you sign it. Remember, this is the foundational document and the agreement that you are reaching with the vendor is set out within the terms of your contract.
• Land Transfer Tax - A purchaser has to pay land transfer tax at the time that the transfer to the property is registered in the government offices. This is now done electronically. The amount of the tax is calculated on the basis of the purchase price.
• Moving - Once you have obtained the keys to your home you may now move into your home. We can never be assured as to when the keys will be available. However, the normal time for obtaining keys is certainly no later than 4:00 p.m. to 4:30 p.m. on the day of closing. This is a matter you need to discuss carefully with your lawyer, as you will have entered into a contract with your mover that depends on you obtaining possession of your home at a certain time. Keep this in mind and be very careful to discuss this fully with both your mover and your lawyer.
• Selling your home - In the sale of your home, there are also a great number of matters that need to be dealt with by your lawyer. Again, our law firm will provide you with a written quote of fees and disbursements, which will be very accurate.

Some of the responsibilities which the lawyer has are as follows:

• Review the agreement of purchase and sale and open a file;
• Prepare draft documentation including a draft transfer;
• Prepare statement of adjustment for review by the purchasers solicitor (a statement of adjustments shows the exact amount that will be required on closing and adjust for items such as taxes);
• Reply to the letter of requisitions from the purchaser’s lawyer and review any potential problems that could effect the closing;
• Prepare the mortgage and complete all the communications with the mortgage company;
• Prepare any register and discharges of mortgage;
• Oversee the entire real estate transaction including all work carried out by the law clerk;
• Complete the registration of all documents on the day of closing;
• Provide or arrange delivery of keys to your new home;
• Report to you.

C. Atkinson,
Brampton, Ontario

Glenn Short
Thornhill, Ontario

Sharon Briggs
Brampton, Ontario

Cathy Chapman
South River, Ontario

Doug practices in the area of Corporate and Commercial law, with an emphasis in the area of Commercial Real Estate and Industrial and Commercial Landlord and Tenant law.
Doug is able to provide his corporate and commercial clients with a number of valuable services, including incorporating, amalgamating and reorganizing corporations, drafting shareholder’s agreements, representation in the purchase and sale of business assets and share capital, representation in the purchase, sale and financing of real property transactions, drafting commercial leasing agreements, enforcing landlord’s remedies, preparing franchise and security documentation for secured loan transactions and realizing on assets pursuant to security documentation and leases.

Self-determination

The most obvious reason that you should make a will is to ensure, as much as possible, that your estate is distributed in accordance with your wishes. Your will guides your loved ones and can reduce or eliminate disagreement. In Ontario, if you are married and have children and die without a will, your spouse will receive the first $200,000.00 of your estate and your spouse and children will split the remainder, in shares which are determined by the number of children you have.

Minor Children

In your Will, you can name a guardian for your minor children. In the event that both parents die, the guardian can apply for confirmation of this appointment and assume care of the children. In the absence of such a designation, there could be confusion about who is to care for your minor children, who could become the subject of a custody battle or, alternatively, come under the protection of the state. Parents usually know best who should be the guardian of their children.

In addition, if you die without a will, any monies to be received by children under 18 years of age must be paid into Court and kept for them until they reach 18 years of age. The return on investment is rarely as good when this happens and someone must apply to the Court to get funds out to be used for the benefit of children to cover their needs before they turn 18. Many people feel that 18 is too young to receive an inheritance and would like their children’s money held in trust for them until they reach a certain age, like 21 or 25. This is only possible if you have a Will.

Choice of Executor

If you die without a Will, someone (or the Public Trustee’s Office) will be appointed to administer your estate, but it may not be the person you would choose.

Income Tax Benefits

Without a Will, your heirs may pay more taxes than would be the case with a well planned Will.

There are do-it yourself Will kits available, but the peace of mind that comes from knowing your estate will be handled properly is well worth the cost of having a Will prepared by a lawyer

Special considerations may be required if you are in a second marriage or if you have children from a previous marriage. Special financial planning techniques, including the use of a trust, may be needed so that you don’t jeopardize any government assistance that may be available to people with a disability.

“Absent fraud, mistake or misrepresentation, a Purchaser takes existing property as he finds it, whether it be dilapidated, bug-infested or otherwise uninhabitable or deficient in expected amenities, unless he protects himself by contract terms.”

Bora Laskin rose to sit on the Supreme Court of Canada as the Chief Justice of that Court. However, the extremity of that Statement has now been modified by Statute and Common Law. The general principal of Caveat Emptor remains the governing principle in the law of Purchase and Sale unless your fact situation allows you to be excepted in some fashion from this doctrine.

The key defence against Caveat Emptor is your Agreement of Purchase and Sale. The doctrine of Caveat Emptor may be defeated by an express warranty contained in the Agreement of Purchase and Sale. This is the reason your agent will often put a warranty in with respect to the state of repair of an appliance as at the date of closing. Note that any such warranty as “as of the date of closing” and any complaints must be made immediately.

The best defence against Caveat Emptor is a well drafted Agreement of Purchase and Sale by a reputable and competent real estate agent. That agent will, for the purchase of resale homes, often recommend that a home inspection be carried out prior to the Agreement becoming firm and binding. Your agent can refer you to such an inspector but, in the event that you need such a referral, please do not hesitate to contact us.

It is the unusual transaction where the doctrine of Caveat Emptor is even called upon to come into play. However, it is a good idea that you understand the significance of this doctrine, so that you will understand the significance of both the home inspection and proper drafting of an Agreement of Purchase and Sale.