Hooray for Latin – Finding Nemo
My latin is rather rusty. Never learned it in school, and only came across it in law school, where suddenly phrases that could be easily understood by me if they were said in English were now presented in Latin. One that has always stood out for me is the phrase Nemo Dat Quod Non Habet.
This phrase roughly translated is that you cannot give that which you do not have. I cannot sell to you Fred’s bicycle. I do not own Fred’s bicycle so therefore, I cannot sell it to you. Makes sense.
So how does this apply to making wills? Almost an infinite number of ways. Since I don’t have infinite time or infinite patience, I will not outline all of them.
Imagine you own a home with a spouse. The home is owned as “joint tenants” which means that the survivor has an automatic right of survivorship. A surviving joint tenant automatically owns the joint property in its entirety. When you pass away, if your spouse survives, the home belongs to your spouse. In this scenario if your will gifts your home to your Uncle Jesse. There is no gift to give. Nemo Dat Quod Non Habet. You cannot give that which you do not have. The gift of the property will fail. However, if your spouse has predeceased you, and you are the only remaining joint tenant left surviving, upon your death a gift of the property to your Uncle Jesse is perfectly acceptable. Since you are the sole owner after your spouse’s death, you have title to the property. Gift away to your heart’s content.
It is important to make sure after you make a will that the gifts you give still exist. Otherwise the gift “adeems” which basically means that it disappears. Often people forget what they gave in the will.
Where a guardian of property is involved, things can get complicated however, Imagine you leave your wedding ring to your Aunty Mortitia. You lose your capacity so your Uncle Fester applies and becomes the guardian of your property. He then sells the ring for cash. You are still alive, but incapable at the time. When you die, the ring has been sold. However your will still refers to the ring. Aunty Mortitia is unhappy. Now, technically the gift adeems (which means that the gift isn’t there, accordingly it cannot be given). However due to the high ability for guardians to engage in shenanigans, the Ontario Legislature partially deals with this in the Substitute Decisions Act. The SDA provides a protection for Aunty Mortitia as may be entitled to proceeds from the estate based on the value of the asset sold.
See the interesting McDougall case at https://www.canlii.org/en/on/onca/doc/2005/2005canlii21091/2005canlii21091.html?searchUrlHash=AAAAAQAeTWNEb3VnYWxkIEVzdGF0ZSB2LiBHb29kZXJoYW0gAAAAAAE that examines this more thoroughly
Making your will is not difficult, but it is tricky. Please consult a lawyer to make sure that your wishes will be honoured after you pass.
Stephen Offenheim
Plan Your Will, Protect Your Family.
www.planyourwill.ca