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Sep

18

Wills and Estates (Part 1/3) – All About Wills

Michael CarabashPlease note that the following information is being provided for educational and informational purposes and does not constitute legal advice. If you require a lawyer, you should make a post on Dynamic Legal Forms (100% free and anonymous). We have trusts and estates lawyers registered who can help you with preparing your will, power of attorneys (for property and personal care), and living wills. If you’d like to learn more about Wills and Estates in Ontario, check out our FREE Legal Guides.

Here is the first part of a series of blogs all about Wills and Estates in Ontario.

What is a Will?
A Will (also referred to as a Last Will and Testament) is a legal document that provides instructions as to how your remaining assets and liabilities are to be dealt with. It also provides for instructions as to who will be responsible for administering your final wishes (known as the estate trustee) and identifying who your beneficiaries will be. Finally, a Will can leave instructions as to who Guardians will be in the case of minor or incapable dependents left behind.

When you die in Ontario (and elsewhere), your assets are pooled together into something called an estate. An estate trustee is appointed in the Will (and a substitute is usually appointed in case the primary estate trustee is unwilling or unable to perform his or her duties) and must administer the Will by paying out liabilities (e.g. taxes owed, funeral expenses, creditors, etc.), managing remaining assets (e.g. selling them, gifting them, investing them, etc.), and distributing the residue of the estate (i.e. the remaining funds after everything else is taken care of) to the beneficiaries designated under the Will.

What are the Legal Requirements for a Will to be valid?
There are only a few things that are needed in order for a will to be valid, binding, and of full legal force and effect. But if you don’t do these basic things properly, the Will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years away, etc. (you get the point).

First, in Ontario, for a Will to be valid, it must be in writing. So says the Succession Law Reform Act. Second, a Will must be made a legally competent person (i.e. you must be 18 years old or older and mentally competent to make a Will). This is often a litigious issue: some will claim that the person making the Will was not sufficiently competent to make the will as they did not understand the purpose and effects of making the Will. FYI, a person under 18 years old can make a Will if he or she is married or if that person is in the Canadian armed forces. The testator (i.e. the person making the will) must also sign the will before two witnesses, who must also acknowledge that this was done (in the presence of the testator) – typically through an affidavit attached to the Will. The testator’s signature must be at the end of the document, but can follow a blank section on the page after the concluding words of the Will. Neither of the witnesses can be beneficiaries (and this has been used to challenge wills before). I say again: beneficiaries under the will must never witness the testator’s signature. Also, the estate trustee is not a competent witness to prove the execution of its will or its validity: s. 14 of the Succession Law Reform Act. While there may be other requirements for a will to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the will as litigation-proof as possible.

Worth mentioning is that Holographic Wills are acceptable and do not require the presence or attestation or signature of a witness to be valid: s. 6 of the Succession Law Reform Act. Holographic Wills must be wholly written by the testator’s in his or her handwriting and signed and dated. People are cautioned against writing their own Wills in this manner and raising the possibility of future challenges.

Is a Lawyer Required to Draft a Will?
The simple answer is no. The longer answer is: it’s probably in your best interests to have a Wills and Estates lawyer to draft and/or review your Will.

First, a lawyer will deal with the issue of capacity – i.e. does the testator have sufficient mental capacity to enter into the will. Does the testator understand the nature and consequences of the will or is their mentality affected by illness, age, etc.?

Next, a lawyer will try to make sure that the testator is not entering the will as a result of some duress or improper or undue influence from an external force. The testator must enter the will voluntarily or else the will may be later contested.

Next, a lawyer will strive to ensure that all of the information-gathering is completed and due diligence has been conducted with respect to the testator’s income, assets, liabilities, and instructions.

Finally, a lawyer will use the appropriate language and precedents to give clear effect to the testator’s wishes and instructions.

For these reasons, it’s generally advisable to contact a lawyer (e.g. by making a free and anonymous post on Dynamic Legal Forms) when you need to write or update your will.

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