ALL ABOUT WILLS
The most important document in estate planning is a Will (also called a "Last Testament"). A Will sets out the wishes of the testator (person making and signing the Will). When a person dies with a valid Will, they are said to have died "Testate". A Will typically addresses the following matters:
- Who will administer the estate upon death
- Disposition of the Testator's property and possessions
Formalities
In order for a Will to be valid, Ontario law requires that certain formalities be met. If the formalities are not met, a Will may be challenged and ultimately found to be invalid.
The required formalities are set out in the Succession Law Reform Act, and include the following:
- Writing: a Will is only valid when it is in writing
- Signature: a Will must be signed by the Testator or another person in his or her presence by his or her direction
- Witnesses: a Testator must sign or acknowledge the signature in the presence of two or more witnesses present at the same time (the witnesses may not be beneficiaries under the Will)
- Signature of Witnesses: the witnesses must also sign the Will in the presence of the Testator
What Happens if I die without a Will?
In Ontario and other provinces and territories, the law specifies who will share in your estate when you die without a valid Will. The laws that govern how your estate is distributed are called the "laws of intestacy". When a person dies without a will, they are said to have died "Intestate". Generally speaking, your nearest relatives are the people who will share in your estate if you die without making a Will.
Depending how complicated your estate is, your relatives may need to hire a lawyer and go to court to deal with your estate. Sometimes, a government agency (in Ontario, the Office of the Public Guardian and Trustee) will get involved to make sure that your estate is dealt with properly.
A person's estate can incur greater costs if he or she dies without a Will and have not planned their affairs accordingly.
See our page on intestacy for more information.
What does my Estate Include?
A person's estate includes solely owned property and all other property interests that don't pass directly to someone else by operation of law (i.e. a jointly owned house with a right of survivorship, known as joint tenancy, would not form part of a testator's estate, but would flow directly to the surviving joint tenant). An estate usually includes money, real estate, personal property, including vehicles, jewellery, electronics, etc., instruments such as stocks and bonds, as well as the contents of any safety deposit boxes. Certain instruments, such as an RRSP, may pass directly to a surviving spouse, child or dependant adult, and would not form part of the estate.
Altering or Modifying a Will
The dynamic of human relationships means that a Testator may decide to change his or her Will a number of times before death. If changes are made incorrectly, the entire document may be invalid or susceptible to challenge.
The most reliable ways to make changes to your Will are to either:
1. Revoke the old Will and create a new document, or
2. Amend the existing Will using a codicil
Although the creation of a new Will automatically revokes the older one, you should consider destroying the old Will to ensure that the old document is not mistaken for the most current Will.
A codicil is an attachment or amendment to a previously executed Will. Altering a Will using a codicil requires care and attention because the alterations must be made in accordance with the Succession Law Reform Act. A codicil should specifically refer to the provisions of the Will that it intends to alter and confirm the existing Will. In order to be valid, it must be signed by the Testator, dated and witnessed by two witnesses.
Special rules apply when altering a Holograph Will.
A Testator should review his or her Will at least annually, as well as after a significant event has occurred, including marriage, divorce, births, deaths, adoptions, change of domicile or residence, and substantial changes in net worth.
Revoking a Will
A Will can be revoked in several ways, including:
1. By the Testator burning, tearing or otherwise destroying the Will. The Testator may also revoke the Will by having another person destroy it, so long as the Testator is present and the person destroying it is acting on the direction of the Testator with the intention of revoking the Will
2. Making a new Will will also revoke an older Will
3. Marriage automatically revokes a Will, with some exceptions (see below)
4. By the Testator writing down an intention to revoke the Will
Revocation by Marriage
Under the Succession Law Reform Act, a Will is revoked on the marriage of a Testator.
The key exemption to this is where the Testator specifically declares in writing within the Will that he or she is making the Will in contemplation of marriage.
This means that if you are having a Will drafted and are about to get married, it's a good idea to acknowledge your impending marriage and specifically name the person who you intend to marry.
Divorce
The basic law in Ontario is that, unless a contrary intention appears in the Will, when a person makes a Will and is subsequently divorced, certain parts of the Will will be revoked. In particular, divorce revokes any gifts of real or personal property made to a former spouse, as well as the appointment of a former spouse as the Estate Trustee.
You must be legally divorced for these rules to have any effect. If you are separated but have not obtained a divorce, the provisions in your Will will still be applicable. It is advisable that a Testator create a new Will soon after separation.
Lapse and Ontario's Anti-Lapse Rules
A lapse occurs where a beneficiary predeceases (dies before) a Testator. According to Ontario law (section 31 of the Succession Law Reform Act), if the beneficiary is a child, grandchild, brother or sister of the Testator, the gift would go to the issue (if any) of the predeceased beneficiary. For example if your Will provides a legacy (cash gift) of $5,000 to your brother, and your brother predeceases you, the legacy would go to the issue (children) of your brother.
Funeral Arrangements
Legally, an estate trustee has the authority to determine the location and manner of funeral and burial. He or she is not bound by any instructions regarding funeral and burial arrangements included in the Testator's Will.
Although many Wills address funeral and burial arrangements, it isn't advisable to include these details in a Will. Instead, you should make your funeral and burial wishes known to the Estate Trustee, close family members and trusted friends who will likely take a leadership role in arranging your funeral.
Although the Estate Trustee has the legal authority over the body after death, practically speaking, the immediate family of the deceased usually plays a large role in arranging the funeral and burial. In some cases, particularly if the Estate Trustee is a professional, he or she does not play any part in funeral and burial arrangements and instead leaves these details to the immediate family.
The advantage of including funeral and burial instructions in a Will is that an Estate Trustee has a source of authority for making such decisions if conflicts occur after death.
Please contact us for additional information and advice.