In Ontario, Wills & Estates are governed by several laws, which set out all the relevant requirements to consider when drafting your will. At Nussbaum Family Law, we can help you anywhere from advising you on the clauses to incorporate in your will and drafting your will, to being witnesses when you are signing your will and informing you on how to store your will. Our family law lawyers are committed to advising you in areas of, but not limited to wills, powers of attorneys, estate planning, estate litigation, and probate.
A will is a written document that outlines a person’s intentions on how they want their estate to be distributed after death.
On the other hand, an estate is the physical property that a person either owns or has an interest in (i.e., the assets and liabilities a person leaves behind after death).
Wills typically share a common structure when dealing with a person’s estate. However, depending on the circumstances and the complexity of a person’s situation, clauses may need to be added or struck out.
In order to be deemed a valid will, specific information needs to be included in same:
In your will, it must clearly illustrate who the testator is (i.e., the individual creating the will). Your will should state your full name and any other names you frequently go by. You are also able to include subsequent personal information such as your profession and place of residency.
An executor is the individual who will carry out the terms of your will and manage your estates (i.e., arranging your burial, tracking down the beneficiaries you’ve named in your will, probating your will, paying off debts, paying taxes, distributing your assets, etc.).
You must ensure that when you are creating a new will, it does not get confused with preceding wills or amendments to a preceding will. If you have multiple conflicting wills upon your death, the Court will struggle with which one to follow. To avoid confusion, you should put a statement in your will revoking previous wills.
Allocating your estate (i.e., your assets and liabilities) is typically the central part of your will. By allocating your estate, you are choosing who you want to inherit your assets. This can be, but is not limited to, members of your family, friends and charitable organizations. It is important to note that you can name a replacement beneficiary in your will— in the event that a primary beneficiary predeceases you.
A residue clause is a provision in your will that will pass along the residue (i.e., remainder) of your estate to any beneficiaries you identify. This is especially important where you accumulate assets after creating your will because rather than amending your will each time, you can put a residue clause which enables certain persons to inherit the residue of your estate.
You must ensure that your will is dated and signed by yourself and two witnesses. Your witnesses will be required to sign an affidavit of execution, which means that they are swearing that they have physically witnessed you sign your will. It is important to note that a witness cannot be a beneficiary, the spouse of a beneficiary or an individual under 18-years-old.
Wills can either be witnessed in person or remotely. If witnessed in person, the testator and both witnesses will sign the same copy of the will, while physically being in each other’s presence. If a will is signed remotely, the testator and both witnesses will be required to meet by video conference (i.e., Zoom or WhatsApp video). The testator and both witnesses will sign separate, yet identical copies of the will. See below for the two types of wills.
A formal will must be signed by the testator and by two witnesses. Alternatively, a person can sign on the testator’s behalf, but only if they are in the testator’s presence and at the direction of the testator (SLRA, s.4(1)(a)). As mentioned, neither witness should be a beneficiary or a spouse of the beneficiary, otherwise, any bequest or devise to the beneficiary will be void.
Holographic wills are less formal than formal wills. This is because they can be handwritten (although, they still need to be signed by the testator) and they require no witnesses or other formalities of execution.
A client who wishes to keep the original will should be advised of the potential problem that can arise if, at the time of the client’s death, the original will that was last in the client’s possession cannot be found; namely, the law will presume that the client destroyed the will.
It is usually a good idea to make a will whether you’re married, have children, or have many assets.
You might think you don’t need a will if you don’t own a house, don’t have much money, or don’t care who gets your property. But someone will have to arrange your funeral, pay your debts and file your tax returns.
When you make a will you decide:
If you die without a will, Ontario law rules about who gets the property in your estate. These are called intestacy rules. Under these rules, people who you thought would get your property may get less or more than you wanted them to get. Or, they may get nothing.
For example, the intestacy rules say only a legally married spouse and biological and adopted children have a right to your property. The intestacy rules do not give anything to a common-law partner, or to stepchildren you haven’t legally adopted.
If you have a spouse, you cannot make one will for both of you. You must each make your own will.
The best time to prepare a will is when you don’t need one— that is, when you are in good health and not experiencing a health crisis. It is never too early to create your will.
Do yourself and your family a favour: don’t wait. It might not be very fun, but you and your family will be thankful that you took the time to prepare.
Generally, wills do not need to be notarized.
However, one of the witnesses should complete an affidavit of the execution. An affidavit of execution is a legal document signed by a witness to a will that confirms the will was properly signed. The affidavit of execution must be completed in the presence of a notary or commissioner for taking oaths. The notary or commissioner should also stamp the will as an exhibit to the affidavit of execution. The affidavit of execution is required if an executor needs to apply to the courts to validate a will (a process called “probate”).
Investing in lawyer will be beneficial in guiding the executor of the Will or the beneficiaries of an estate through the probate process. Lawyers will assist in identifying the beneficiaries, the estate assets, the distributing assets, and any inheritances. Ultimately, a lawyer will represent beneficiaries of a Will and advance their interests and ensure the assets are administered accordingly.
An estate planning attorney/ and or lawyer
Drafting a Will is specific to the clients’ needs. As such, the cost of a Will in Ontario can vary drastically according to the complexities it may or may not require. For example, if a Will is to incorporate a spousal power of attorney, the costs will rise.
In the unfortunate circumstance of a death, the deceased’s remaining debts and assets need to be distributed and settled according to a Will. In the absence of a Will, an estate can be settled without probate. However, where an estate is not straightforward and a claim is made against the estate, a lawyer would be the best person to speak to. A lawyer can assist you by providing legal advice on the next steps you need to take.
The requirements for a valid legal Will in Ontario are:
1) The Will must be created by the testator, who is of sound mind, and over the age of 18
2) The Will must be in writing
3) The person who drafted the Will must have signed and dated it in wet ink and stored it as the physical copy
4) Two adult witnesses must have signed the last page of the Will together with the testator
However, Holographic Wills are an exception to this rule in Ontario.
A Will is not always the most efficient option for bequeathing all interests or assets. There are particular interests you may not want to include in a will. For example, funeral instructions might not be something to include in a will since the family members may not get to see the will before planning arrangements. Another example is entering a property in trust into the Will. A trust is a separate entity where you title property into the trust and is subject to the trust’s rules and not the Will. Since the trust has independent operations, it’s important to ensure you are not putting anything in your will which the trust will cover and distribute on its own conditions. These are only a few examples of the complexities in creating a will or estate planning. Thus, it is always more efficient in gaining legal advice when you are dealing with conjunction of Wills, trusts, and estates planning.
Through the process of entering your details and answering questions online, it is possible to create a DIY will. However, in court, wills must conform to strict legal requirements. Many times, something as small as using incorrect wording could mean that the instructions on the Will were not followed, in which the courts will deem the will invalid. Although the short answer is yes, online wills are valid. More often than not, you will be dealing with issues of preciseness and validity, especially if someone is likely to contest your will after your death.
The basic and most important things to put in a will are:
However, each Will shall vary according to the individual’s specific assets.
Yes, if you would like to cancel a previous Will and replace it with another Will, in most circumstances this will invalidate the old will. To ensure this, you can include a clause near the beginning of any Will you are creating to say that all earlier wills are canceled and invalid.