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Jun

25

Toronto Probate Lawyer | Estate Administration (Part 11): Dying with a Will

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. It may not be up to date. Laws change often and without notice. If you need legal advice with respect to Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Brampton, Mississauga and other Ontario lawyers registered to help you. You can also contact me directly.

This is the eleventh of a series of MANY blog posts about Estate Administration in Ontario. Be sure to check them all out! Here, I’ll continue my discussion of what the registrar will do when reviewing an Application for a Certificate of Appointment of Estate Trustee with a Will. Specifically, I’ll discuss some of the questions the registrar will ask in deciding whether to issue a Certificate of Appointment of Estate Trustee with a Will. By knowing these things in advance, you can avoid wasting more time and money in getting the Certificate of Appointment of Estate Trustee with a Will.

Was the deceased a minor at the date of the Will?
A Will is only valid if the person who made it was at least 18 years old at the time of making it (or 21 years old if the Will was made before September 1, 1971). There are a few exceptions to this age requirements:

  • The testator / testatrix was married before the Will was executed: section 8(1)(a) of the Succession Law Reform Act;
  • Where the testator / testatrix is married after the Will was executed, the Will becomes valid on the date of the marriage if the Will states that it was made in contemplation of marriage to that spouse: section 8(1)(b) of the Succession Law Reform Act;
  • Where the testator / testatrix is a member of the regular force of the Canadian military or is on active service under the National Defence Act: section 8(1)(c) of the Succession Law Reform Act; or
  • Where the testator / testatrix is a sailor at sea or in the course of a voyage: section 8(1)(d) of the Succession Law Reform Act.

If the testator / testatrix was not 18 at the time of making the Will (or 21 in case the Will was dated earlier than September 1, 1971), the registrar will ask for a schedule to the Application that contains an explanation. The application and schedule with explanation are then provided to a judge for a determination by endorsement. If the judge says it’s OK, then the Application for a Certificate of Appointment of Estate Trustee is not in peril of being denied.

Did the deceased marry after the date of the Will?
Generally, when you get married, a previous Will which you made will be automatically REVOKED! There are a few exceptions. First, if the Will contains a declaration that it was made in contemplation of the marriage, then it will not get revoked. Second, the Will will not be revoked where the testator / testatrix’s spouse elects to take under the Will by an instrument in writing signed by the spouse and filed within 1 year after the testator / testatrix’s death in the office of the Estate Registrar for Ontario. In this situation, the registrar will look for proof that the election was signed and filed by the spouse within the appropriate time period. If the deceased married after the date of the Will, the registrar will ask for a schedule to the Application that contains an explanation. The application and schedule with explanation are then provided to a judge for a determination by endorsement. If the judge says it’s OK, then the Application for a Certificate of Appointment of Estate Trustee is not in peril of being denied.

Did the deceased’s marriage terminate after the date of the Will?
Here’s the situation: the testator / testatrix was married and had a Will. Then that marriage was terminated by divorce or annulment. What’s the result? The Will is still in effect BUT gifts to the former spouse under the Will are AUTOMATICALLY revoked and the former spouse cannot act as estate trustee. As usual, there is an exception to this rule: these automatic rules won’t kick in if the Will indicates that the termination of the marriage should NOT revoke the appointment of the former spouse as estate trustee or gifts to the former spouse. Once again, if the deceased’s marriage was terminated by divorce or declared a nullity after the date of the Will, the registrar will ask for a schedule to the Application that contains an explanation. The application and schedule with explanation are then provided to a judge for a determination by endorsement. If the judge says it’s OK, then the Application for a Certificate of Appointment of Estate Trustee is not in peril of being denied. If the judge says it’s OK, then the judge will indicate on the Will one of the following phrases beneath the testator / testatrix’s signature:

  • “Devise or bequest to (name of former spouse) is revoked by reason of section 17 of the Succession Law Reform Act“.
  • “Appointment of (name of former spouse) as estate trustee is revoked by reason of section 17 of the Succession Law Reform Act“.
  • “Devise or bequest to (name of former spouse) and appointment of (name of former spouse) as estate trustee is revoked by reason of section 17 of the Succession Law Reform Act“.
  • “The general power of appointment conferred on (name of former spouse) is revoked by reason of section 17 of the Succession Law Reform Act“.
  • “The special power of appointment conferred on (name of former spouse) is revoked by reason of section 17 of the Succession Law Reform Act“.
  • The registrar’s signature, printed name and the title “Registrar, Superior Court of Justice (location” are placed directly below the printed phrase(s).

Did a beneficiary under the Will or spouse of a beneficiary witness the testator sign or sign for the testator?
A gift under the Will to a person who witnessed the signing of the Will is void. So too is a gift under the Will to a person who signed for the testator. Same goes for a gift to the spouse of the witness or person who signed for the testator. Those gifts are all VOID at first glance: section 12 of the Succession Law Reform Act. Now, as usual, there are exceptions to this rule. First, the beneficiary witness can release their right to the gift. Second, the other beneficiaries may consent to the gift. Third, the beneficiary can also bring a motion for relief under s. 12(3) of the Succession Law Reform Act and convince the Court that they did not exercise any improper or undue influence. If the beneficiary doesn’t bring this motion, a person with a financial interest in the estate can bring a motion to require the witness to do so. If the beneficiary witness fails to do so, he or she forfeits his or her right to the gift. If the applicant indicates that a beneficiary or a spouse of a beneficiary has signed the Will as a witness, or for the testator, and has explained in a schedule to the application that he or she gave up the right to the gift under the Will and signed and filed a release, then the Registrar will refer the file to a judge for a determination. If the other beneficiaries consented, and the consent has been filed and an explanation provided in a schedule, then the file will be referred to a judge for a determination.

If the spouse of the deceased is the applicant, has the spouse elected for an equalization share provided under section 5 of the Family Law Act?
Here’s the situation. The spouse of the deceased is the applicant. The spouse has elected to take under the Family Law Act instead of under the Will. Under the Family Law Act, when married spouses get divorced or one of them dies, the other spouse is (absent an domestic contract that says otherwise) entitled to an EQUALIZATION OF THE NET FAMILY PROPERTY. I’ve previously discussed this here. Now, if that’s the case, the spouse CANNOT be the estate trustee [Reid v. Reid Martin (1999) 35 E.T.R. (2d) 267]. A spouse who fails to make an election is DEEMED to take what is given to them under the Will. So, if the spouse of the deceased is an applicant AND has elected to receive their entitlement under the Family Law Act (hence they are not entitled to be the estate trustee), then an explanation in a schedule will need to be provided as to why the spouse is entitled to apply. The matter will then be provided to the judge for a determination.

Are there alterations, erasures, interlineations or obliterations on the Will?
Finally, where the testator / testatrix makes changes to a Will BEFORE it is executed, the testator and the 2 witness MUST initial the change either in the margin or close to where the changes were made. A change will include an alteration, erasure, interlineation, or obliteration. The witnesses need not be the same ones that witness the execution of the Will. There are exceptions to this rule: where the testator is a member of the military on active service or where the Will is a holograph Will (i.e. written entirely in the testator’s handwriting), then the requirement for witnesses doesn’t apply to changes to the Will. In these situations, ONLY the testator MUST place his or her signature in the margin or close to where the changes were made [section 5 and 6 of the Succession Law Reform Act]. A codicil (which is a separate document that makes changes to a Will) which has alterations must follow these rules as well. If these formalities are not complied with, then the testator’s changes will be void. If a provision of the Will is unclear because of the void changes, then that part of the Will that has been changes will be of no effect. If there were changes, the Registrar will look to see that they have been properly executed (as discussed above), check to see that Affidavits of Execution of Will is filed with the Will as an exhibit to the affidavit, and send it to the judge for a determination. If the judge directs that everything’s OK, then the Certificate of Appointment of Estate Trustee will not be in jeopardy of being rejected.

PHEW! That was a lot of stuff that the Registrar will review. Just make sure to think about these pitfalls ahead of time and consult a lawyer when you’re looking to probate a Will (now called applying for a Certificate of Estate Trustee With a Will).

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.

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