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Wills | Last Will and Testament (Ontario) Part 1

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Wills | Last Will and Testament (Ontario)

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, you should seek professional assistance.

Legal Will for Ontario

Looking for an Ontario Will? Then look no further:


This Will allows you to name someone (Estate Trustee) to administer your estate and transfer your property at death. This Will allows you to make cash gifts, charitable gifts, and gifts of real or personal property to specific beneficiaries. This Will allows you to transfer the residue of your estate (i.e. the left over assets) to your surviving spouse OR to your surviving issue (e.g. children, grandchildren) OR in trust to your surviving spouse with the remainder going to your surviving issue when your spouse passes away.

Remember: this Last Will and Testament is lawyer-prepared, customizable, affordable, and comes with a ton of free guidance (a video tutorial and written guides!). All for just a fraction of the cost a lawyer would charge (which in 2010, was over $344 for a simple Will for just one person: check out page 3 of 6 in this national fee range report).

Introduction

So we’ve just updated our Last Will and Testament package for Ontario (we do this quite regularly) and I thought it would be worthwhile to talk about Wills generally in Ontario… In this blog, I’ll talk about what is a Will in Ontario and what are the legal requirements to have one.

What is a Will?

A “Will” (also referred to as a “Last Will and Testament”) is a legal statement of a person’s wishes concerning the disposal of his or her property after death. In the Will, the person who makes it (called a “Testator” if they are a man or a “Testatrix” if they are a woman) names another person (called an “Estate Trustee”) to be responsible for administering their estate when they die. A Will also allows a Testator / Testatrix to appoint a “Custodian” for their minor children or dependants and “Guardian” of their property. According to section 1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, a Will also includes a “Codicil”, which is a document that cancels certain parts of your Will or adds new parts to it and which must be read together with your Will as one document. It’s important to note that, a Will on speaks from death; in other words, it only takes effect once you die. This can have significant implications, for example, if you make a gift of property in your Will but then sell that property before you die!

By means of background, when you die in Ontario, 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.);
  • manage remaining assets (e.g. selling them, gifting them, investing them, etc.); and
  • distribute 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 requirements for a Will to be valid and enforceable. 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, etc.

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 by a legally competent person (i.e. the Testator / Testatrix must be 18 years old or older and mentally capable of making 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. Worth mentioning is that a person under 18 years old CAN make a Will if he or she is married or if he or she is in the Canadian Armed Forces.

Third, the Testator / Testatrix must sign the Will before two witnesses who are both present during signing. The witnesses must also acknowledge that this was done – typically through an affidavit attached to the Will. It is also a good idea to have these affidavits in case the Will needs to be “probated” through the courts (i.e. legally processed to establish the validity of a Will before a judicial authority): if probate is necessary, and many years have passed since the Will was signed and witnessed, the witnesses will need to be located for the purposes of giving affidavits. To avoid wasting time and money locating witnesses, it is best to simply have them sign affidavits at the same time they witness and sign the Will. It is not necessary for witnesses to see or read any part of the document. The Testator / Testatrix’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 or their spouses, or else transfers of real or personal property to them are voided: section 12 of the Succession Law Reform Act.

It is a good practice for all parties to initial in the bottom right hand corner of every page leading up to the signing page. 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: section 6 of the Succession Law Reform Act. Holographic Wills are wholly written by the testator in his or her handwriting and signed and dated. People are cautioned against writing their own Will in this manner as it may lead to the Will being challenged.

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