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Wills and Estates | Last Will and Testament (Ontario) – Part 5

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. This blog may not be up to date. Laws change quickly 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.

This is the fifth of a series of MANY blog posts about Wills in Ontario. Be sure to check them all out! Here, I’ll be discussing what the basic structure of a simple Will is and how it can be amended, revoked, or revived.

What is the basic structure of a Will?
Simple Wills follow a common structure:

  1. Identify the person who is making the Will.
  2. Revoke previous Wills.
  3. Appoint an Estate Trustee and a Substitute Estate Trustee (i.e. someone who is legally competent and will administer your estate as per your final wishes).
  4. List your wishes concerning your taxes, funeral, and personal effects.
  5. List and divide your personal and real property if you wish.
  6. Distribute the residue of your estate (i.e. left over after all liabilities have been paid and all other gifts distributed).
  7. Outline the powers and limits of your Estate Trustee (e.g. manage investment, sell / dispose / retain assets, employ agents, deal with real property, make loans to beneficiaries, settle claims, make elections under the Income Tax Act, etc).
  8. Appoint a Custodian for your minor and disabled children and Guardian of their property.
  9. Include dispute resolution provisions (if you wish)
  10. Execution: sign and date the Will and have it witnessed by appropriate parties.

How can you amend a Will?
If you want to amend your will, you can do so by creating a Codicil (i.e. a legal document). You can’t simply cross off a part of the Will or insert a new section in handwriting on top of the Will. You must either create a new Will or (if the change is relatively minor) create a Codicil. A Codicil is a written document that refers to the Will and the parts that are being changed (removed, added, etc.). A Codicil must be signed, dated, and witnessed by two parties in the same way as a Will is made: section 18 of the Succession Law Reform Act.

Codicils that amend previous Codicils should also state that fact (i.e. that a particular Codicil is being revoked). If there are many Codicils, it would probably make sense to re-write the entire Will (for simplicity’s sake). You can purchase a Codicil on Dynamic Legal Forms.

How can a Will be revoked?
A Will can only be revoked only by:

  • Marriage, unless there is a declaration in the Will that it is made in contemplation of a marriage to a particular person: sections 15(a) and 16(a) of the Succession Law Reform Act
  • Making and properly executing another Will: section 15(b) of the Succession Law Reform Act.
  • A written declaration with an intention to revoke which follows the rules of making a Will: s.15(c).
  • The Will being destroyed (e.g. burned, torn, etc.) by the Testator / Testatrix or some person in his or her presence and by his or her direction with the intention of revoking the Will: section 15(d). There must be both a physical act and an intention to destroy (so a symbolic destruction will not suffice!).

How can a Will be revived?
A Will that is revoked can be revived only under section 19 of the Succession Law Reform Act:

  • By a Will being made;
  • By a Codicil being made which shows an intention to give effect to the Will or the part of the Will that was revoked; or
  • By the re-execution of a previously revoked Will with the required formalities.

Unless the contrary can be shown, there is a presumption that, when a Will is partially revoked and then afterward wholly revoked and then revived, the revival does not extend to the part that was partly revoked (i.e. before the whole revocation). If you didn’t understand that last part, just re-read it 🙂

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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{ 1 comment }

Lawyers and Legal Services Australia March 29, 2010 at 12:01 pm

This is good advice. I am glad that in the US you have information like this available. There is nothing like this in Australia to help with this sort of thing. I think wills should still be drafted by lawyers, but if it could just be made more accessible to the public by being made cheaper than would be great. I thinkk your service is helping achieve that. Great job!

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