The month of November marks ‘Make a Will Month’ in Ontario, a public awareness campaign to educate Ontarians about the importance of making a will. By way of background, a will is a legal document that outlines an individual’s wishes in the event of their death. It delineates how you wish your assets, property, or any other possessions to be distributed. A will may also appoint an executor and name guardians for any dependents.
While some people attempt to create their own will, legal counsel can be vital in ensuring that a will is legally binding.
What Makes a Legal Will in Ontario?
In general, pursuant to the Succession Law Reform Act, for a typical will to be formally valid, it must meet the following requirements:
- The will must be created by the person making the will (the “testator”) who is of sound mind and over the age of majority in Ontario (18 years old)
- The will must be signed by the testator and two witnesses who do not benefit under the will (this may now be done remotely)
- The witnesses and testator must sign the last page of the will
Sometimes, a person creates a handwritten will, known as a holograph will, which has different legal requirements. To be legally binding, a holograph will must meet the following criteria:
- There must be evidence that the testator actually created the will, which can be proved through the use of witnesses, friends, other handwritten documents that verify the identity or other methods
- The testator must have had the intellectual capacity to write the will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary
- The testator must be expressing a wish to direct the distribution of his estate to beneficiaries
With a holograph will, it is important that every word be written in the testator’s handwriting.
What Happens if You Die Without a Will?
If a person dies without a will in Ontario, it is known as dying intestate. Where an individual dies intestate, their estate is distributed among living relatives pursuant to the Succession Law Reform Act, typically in the following order:
- If the deceased has a spouse but no children, the entire estate goes to the spouse
- If the deceased has a spouse and children, the spouse will get the first $200,000 and the remainder is divided equally between the children and spouse
- If the deceased does not have a spouse but does have children, the estate is divided equally between the children. If any of the deceased’s children have died, their children (the deceased’s grandchildren) get their share
- If the deceased does not have a spouse, children or grandchildren, the estate is divided equally between the deceased’s living parents
In the event the deceased has no surviving next of kin, their estate goes to the Crown.
Given this statutorily mandated hierarchy, dying intestate can leave a common-law spouse or any other non-relative loved ones vulnerable as they may not receive any part of the estate. Depending on the makeup and circumstances of the deceased’s family, dying intestate can further result in complications, delays, and extra cost in the distribution of the estate.
Where a person dies intestate, an application must also be made to the court for a person to be appointed as an estate administrator in accordance with the requirements under the Rules of Civil Procedure and with the necessary security required under the Estates Act.
Creating a Will Allows the Appointment of a Trusted Executor
Another benefit of creating a valid will is the ability to appoint a trusted executor (also known as an Estate Trustee) to administer the estate. A single person can be appointed as executor or several people can be appointed to act jointly, independently or in substitution for one another. As an executor has total control of the estate after you pass away, it is important to appoint the appropriate person.
In the vast majority of cases, people name their spouse (if any) as the primary executor as the spouse is also typically the person to whom most, if not all, assets are left. Where a person does not have a spouse but has children, then most often one or more of those children will be named as the executors. There are, however, many circumstances where a spouse or children are not available or are not appropriate executors in which case another person can be appointed.
Making Changes to a Will
Once a will is created, it is still possible to change it at any time. A life event such as a marriage, separation, divorce, the birth or adoption of a child, may necessitate a change in beneficiaries and the distribution of assets in a will.
As noted above, while online wills and will kits are available, the value of having a will created with the assistance of a professional cannot be overstated. Whether or not an estate has complicated assets, a lawyer can ensure that a will is legally binding so that the estate is distributed as efficiently and cost-effectively as possible. A lawyer can assist in including customized clauses and control the timing and amounts for distribution of the capital by the inclusion of a trust in a will if some beneficiaries are minors or persons with a disability. A lawyer can further aid in appointing an appropriate executor and can further assist in minimizing costs and taxes, including estate administration taxes.
Contact Bader Law in Mississauga for Estate Planning Services Including Making a Will and Will Review
The trusted estate lawyers at Bader Law can help with a wide range of wills and estate matters, including drafting a will, updating a will, as well as probate and estate administration, to ensure that your loved ones are cared for in the event of your passing. With care and compassion, our team of estate planning and administration lawyers will ensure your will meets the needs of you and your loved ones. Contact us by phone at (289) 652-9092 or reach us online to discuss your estate needs.