There are 2 certainties in life- taxes and death. You should not go through life without documenting a plan for how your assets should be disbursed when you die. Death causes many emotions including anxiety, anger, fear and grief. Remove frustration and overwhelm from the mix by having your Will drafted.
What is a Will?
A final Will and Testament, often called simply a Will, is a written legal document that outlines which individual or organization you wish to give your assets to upon your death, and who you appoint to carry out these instructions. It is a contract the testator makes that is binding upon the entire world. Here are common terms you will hear when dealing with Wills or estate matters.
An ‘estate’ is all of the personal (cars, money, jewelry, investments etc.) and real property (land) owned at the time of death.
The ‘testator’ is the person creating the Will. A person who dies while not having a will is also called ‘intestate’.
An ‘executor / executrix’ is appointed by testator to administer their estate.
A ‘beneficiary’ is someone listed in the Will who is meant to received a specific gift from the testator’s estate.
The Requirements of a valid Will in Ontario.
Ontario recognizes two types of Wills: Holographic and Formal. A holographic Will is solely handwritten by the testator without the use of any machines. A formal Will is one that is usually typed and created with the assistance of legal counsel. Ontario’s Succession Law Reform Act (SLRA) outlines the requirements for Wills in Ontario to be considered as valid.
Both holographic and formal Wills have the common requirements of:
The testator must be over the age of 18
The testator must be of sound mind or have the requisite mental capacity to make a Will
The Will must be written
A holographic Will has the following requirements:
Be handwritten on a piece of paper
State the date the Will was created
State the testator’s full name
Have the testator’s signature at the end; and
There are no required witnesses to sign.
A formal Will has the following requirements:
Be handwritten or machine written on a piece of paper
Be dated
State the testator’s full name
Be signed by two witnesses in the presence of the testator
Be signed by the testator in the presence of the two witnesses
The signing witnesses are not listed as beneficiaries in the will; and
The witnesses must sign an affidavit, which states that the testator and the witnesses signed the will in the presence of each other
Dying without a Will.
Dying intestate (without a Will) can result in many problems for your family members. For starters, the probate process will be lengthened and can be more costly since the matter is now made more complicated. If you have a common law spouse, they can be left out since not every provincial law account for this type of relationship. The Family Law Act defines a spouse as married person and does not include co-habiting parties or common-law partners.
In Ontario, the Succession Law Reform Act (SLRA) dictates how your estate is distributed if you die without a Will. This is typically the order of distribution:
If you have a spouse but no children, your spouse gets your entire estate.
If you have a spouse and a child or children, the spouse of anyone who passed before March 1st, 2021, will get the first $200,000 of the estate. Spouses of those who passed on or after March 1st, 2021, will receive $350,000 of the estate. This is known as the preferential share.
If you don’t have a spouse but have children, your estate is divided equally among your children. If any of your children have died, their children (your grandchildren) get their share.
If you don’t have a spouse, children or grandchildren, your estate is divided equally between your parents. If only one is alive, they get your entire estate.
If you don’t have a spouse, children, grandchildren or parents, your estate is divided equally among your brothers and sisters. If only one of your siblings is deceased, then their shared is divided equally among their children.
If you don’t have a spouse, children, grandchildren, parents or siblings, your estate is divided equally between your nephews and nieces.
If you don’t have a spouse, children, grandchildren, parents, siblings or nephews or nieces, your estate is divided between your next of kin of equal degree of consanguinity to the intestate.
If you don’t have any living kin available to benefit from your estate, then your property ‘escheats’ or goes to the Crown.
Do you need a lawyer to create a valid Will?
The short answer is no. Anyone in Ontario can create a valid Will once they follow the steps outlined in the law. However, a lawyer will have that specialized knowledge to ensure your wishes are best put on paper. There are many cheap options available like online Will kits. These are pre-drafted templates where you insert some information, download and then print.
These can be problematic given the standardized nature and more suited to the most basic of estates. Legal counsel should be sought if you are married, if your estate is significant and especially if you own a business. For example, if you own a corporation, you will need help with a succession plan that will consider asset or share distribution and may be able to engage estate planning strategies such as an estate freeze. Some lawyers would recommend a secondary Will for assets that do not need to be probated saving time and money.
Complexities also arise if the testator had multiple marriages and children from those marriages. A Will drafted using competent legal counsel will be difficult to contest and can save the estate money in avoiding drawn out litigation, which in turn ensures the beneficiaries can received their intended gifts.
Your lawyer can also keep a physical copy of your Will in a safe and secure location. It is a common today that the testator does not divulge the location of their Will before they die or even if they had a Will so family members are incapable of finding the original Will. This means the court will treat the deceased as having died intestate and their wishes would not be carried forward as the estate is subjected to the distribution hierarchy as outlined in the SLRA.
Circumstances in life change, so many testators attempt to make changes to their Wills over time without legal counsel and in turn this can invalid certain altered clauses in the Will. For example, a testator may alter the amount a beneficiary receives, place their initials and the date next to the change. A lay person will believe this is sufficient, however, the court will likely not respect this alteration since it is missing the witness’ signature to verify this alteration is legitimate. A lawyer can assist in making alterations to ensure the Will remains within the confines of the law and is still valid. In some cases where an alteration is so substantial, for example eliminating a child who is a beneficiary from the Will, it may be better to draft a new Will with the new clauses. Substantial changes to a Will can open the gates to an application to the court for a Will challenge.
A lawyer can also advise on how to structure the Will. Proper structuring can be used to offset taxes through charitable donations. In Ontario, no tax is paid on the first $49,999 of an estate’s value and then $15 per $1,000 is owed on estates valuing $50,000 and above. A lawyer can also help you decide whether to leave assets in a Trust for young children and who may be suitable for an appointment of guardianship over your children under 18 years old.
How can Yanique Russell Law help?
Here at Yanique Russell Law, our estate lawyer is equipped with the knowledge and skill to create your estate plan and draft your Wills. Our lawyer will guide you through the process while taking instructions on your wishes that will be included in your Will. Our firm ensures that your Will is meticulously drafted to ensure it protects your loved ones and preserve your assets, while complying with all the laws in Ontario. Most importantly, we help you protect the autonomy the law affords testators by drafting a solid Will that would be difficult to contest. This way, you and your loved ones can rest assured that your final wishes are concreted on paper.
Visit www.yrusselllpc.com to schedule a free 15-minute consultation with our estate lawyer today. You will be happy you did.
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