Wills

What is a Will?

A will is a legal document that depicts how an individual’s estate—assets, properties and personal belongings will be distributed after their death. It allows the person making the will, known as the testator to appoint an executor to manage the distribution of their estate and to designate beneficiaries who will inherit the assets. If a person dies without a will, their estate will be distributed in accordance with Ontario’s Succession Law Reform Act and someone would need to apply to the court to ask for authority to administer the estate.

Why is a Will Important?

A will provides clarity and direction regarding the distribution of your assets, ensuring that your wishes are respected. It offers several benefits:

1. Control Over Asset Distribution

By creating a will, you can decide who receives your assets and in what proportions.

2. Appointing an Executor to Manage the Estate After Death

The executor, appointed in the will, is responsible for managing your estate after your death. This includes paying debts, distributing assets and ensuring that the terms of the will are carried out.

3. Choosing Guardian(s) for Minor Children

A will allows you to appoint a guardian for your minor children, ensuring that someone you trust will care for them if both parents are deceased.

4. Reducing Family Conflicts

Having a clear, legally valid will can prevent disputes among family members over the deceased’s estate. It provides a clear and legally enforceable plan, reducing or preventing conflicts over inheritance.

5. Avoiding Intestacy Rules

If someone dies without a will, their estate will be distributed according to Ontario’s intestacy rules. This often results in unintended consequences, such as distant relatives inheriting the deceased’s estate or leaving out people the deceased wished to provide for.

Types of Wills in Ontario

There are mainly two types of Wills in Ontario:

1. Formal Wills

A formal will is the most common type of will, prepared by a lawyer. It is typed or printed and signed by the testator in the presence of two witnesses, who must also sign the will. After signing the Will, the witnesses sign a written statement called an affidavit. In the affidavit, the witnesses swear by signing that they saw the person sign the Will, and that they have no reason to believe that the testator was not capable of making the Will.

2. Holographic Wills

A holographic will is handwritten and signed by the testator without the need for witnesses. While it can be considered a Will, there’s a high Risk of Invalidation in handwritten Wills. Courts may reject improperly executed or ambiguous looking Wills and the deceased’s belongings, properties, business and debts may be subject to intestacy laws. Despite more prevalence of Formal Wills in Canada, Holographic Wills are recognized in Canada’s all provinces except in British Columbia and Prince Edward Island.

Essential Criteria of a Will

For a will to be legally valid in Ontario, it must meet certain criteria as follows:

1. A Testator should be Mentally Stable and of Age of Majority

The testator must be at least 18 years old and of sound mind, meaning they must understand the nature of their assets, the potential beneficiaries and the legal implications of their decisions.

2. A Will Should be Always in Writing

A will must be in writing, either typed or handwritten, but not verbally expressed. The Will document must be clear, concise and should be complete with required signatures to avoid misunderstandings or legal disputes

3. Two Witnesses

In a Formal Will, the testator’s signature must be witnessed by two individuals who are not beneficiaries under the will and are not receiving any type of gift in the Will. These witnesses must sign the will in the testator’s and a lawyer’s presence and in the presence of each other.

4. Revocation Clause

A well-drafted will should include a revocation clause that should clearly mention that any previous Wills are revoked (if any previous Wills existed) to ensure the current will is the only legally binding document and there is no conflict in the Wills later.

How to Create a Legally Binding Will?

1. Consult a Lawyer

While it is possible to create a will on your own, it’s highly recommended to consult a lawyer. A lawyer can ensure that your will complies with Ontario law, is comprehensive and accurately reflects your wishes. This reduces the risk of disputes or any legal consequences later on.

2. Assess Assets and Liabilities

Before drafting a will, the testator should take an inventory of their assets and liabilities. This includes real estate, investments, bank accounts, personal properties, any businesses/companies owned by the testator and any debts. It helps in distribution of the estate.

3. Choose Beneficiaries and Alternate Beneficiaries

The testator must decide who will inherit their estate. Beneficiaries can be family members, friends, charities or organizations. The testator may also specify how (in what proportion) the assets will be divided among the beneficiaries. It’s also important to choose alternate beneficiaries in the event that the testator’s primary beneficiaries pre-decease them, die in a common accident with them, or die before they receive the full amount of a trust the testator set up for them in their will.

4. Appoint Executors and Alternative Executors

Appointing an executor is a must part of a Will. An executor is someone who is responsible for carrying out terms of a will. It is important to choose someone trustworthy and capable of managing the responsibilities involved. It’s also crucial to choose alternate executor(s) in the event that the primary testator pre-decease the testator or die in a common accident with the testator or is unwilling or unable to act as executor at the testator’s death.

5. Appointing a Guardian for Minor Children

If the testator has minor children as beneficiaries in their Will, they should appoint a guardian to take custody of the children in the event of their death if the children are still minors during and after their death.

6. Preparing, Signing and Witnessing the Will

A lawyer can assist a testator in preparing a Will that is legally binding. The testator must sign the will in the presence of two witnesses. The witnesses must also sign the Will in the presence of the testator and each other in front of the lawyer. The witnesses should not be beneficiaries of the will to avoid any conflicts of interest.

7. Store the Will Safely

After the will is signed and witnessed, it should be stored in a safe place. The executor(s) should know where the original will is kept. Some people choose to store their will with their lawyer or in a safety deposit box in a bank.

8. Update the Will if there’s a Major Change in your life Concerning the Content of the Will

It’s recommended to update a Will periodically, especially after major life events or changes in your life, such as marriage, divorce, birth of a child or significant changes in financial status. An updated will ensures that your current wishes are reflected and that it remains legally valid.

9. Executing the Will Upon Death

After a testator passes away, the executor chosen by them in their Will is responsible for administering the estate. This includes applying for probate (if necessary), paying debts, filing taxes and distributing assets to the beneficiaries in accordance with the will.

What are the Consequences of Not Having a Will?

If an individual dies without a will in Ontario, their estate will be distributed according to the province’s intestacy laws, which can result in unintended consequences such as:

1. Default Distribution of Assets

The intestacy rules may exclude the individuals you wanted to benefit from your estate. Generally, when a person dies without a will, the people who can inherit their estate include their spouse (not common law spouse) and closest next-of-kin. A common law spouse is not eligible to inherit under the Succession Law Reform Act.

2. No Control Over Executor or Guardianship

Without a will, you have no say in who will manage your estate or who will take custody of your minor children. The court will appoint an administrator to manage your estate and a guardian for your children, which may not align with your wishes.

3. Increased Risk of Disputes

Without clear instructions on asset distribution, family members may disagree over how your estate should be handled, causing legal disputes that can delay the administration process.