10 Things To Consider When Drafting Your Will in Ontario

A will is a set of instructions that determines what happens to the will maker’s belongings, assets/investments and who will look after administration of these assets as well as who will care for the will maker’s children/dependents. Here are some commonly questions that we are often asked by clients who are considering drafting a will. If you have questions extending beyond the scope of this article, please contact a member of our wills and estate lawyers today for immediate legal assistance. 

Do I Have To Write A Will?

There is no legal requirement to write a will in Ontario. However, if you do not write a will, your estate will be administered and distributed according to Ontario’s intestacy rules. These rules are outlined in Ontario’s Succession Law Reform Act.

Do I Need A Lawyer To Draft A Will?

No, you do not need to hire a lawyer in order to write your will. However, seeking legal counsel may be helpful to help navigate you through the process, as writing a will can involve a number of unexpected complexities.

When Is The Right Time To Draft A Will?

There is no defined time to draft a will. There are, however, legal requirements in order to write a valid will. For example, you must be 18 years or older unless you are married or a member of the Canadian Forces.  There are other requirements as discussed further below.

How Do I Write A Will?

There are several different ways to draft a will. A holograph will is an entirely handwritten will that is written and signed by the will maker.  A holograph will does not need to be witnessed but you should consider that it might be easier to challenge a holograph will in the absence of witness who can attest to the will maker being of sound mind (and actually being the will maker).  A will “kit” is a will that has been signed in the presence of two witnesses (can be virtual due to COVID-19) and requires an affidavit of execution to prove that the will was signed in front of the witnesses. A formal will is typically drafted with the aid of a legal professional such as a lawyer and it is signed in the presence of two witnesses, (in person at the same time as the will is signed).  Note that witnesses to a will generally should not be the named executors, beneficiaries or be spouses of anyone who is a named executor or a beneficiary.

What Can I Include In My Will?

Your will includes any instructions you have regarding your estate once you are deceased. The will should nominate any required estate representatives, usually referred to as an executor, executrix or an estate. The named party (or parties) is responsible for administering your final wishes based on the contents of your will after you are deceased. Your instructions on the division of your assets and property and your instructions for the care of your children and more can also be included in your will as may be applicable in your circumstances.  Note that although you may choose to put your funeral instructions in the will, such instructions are not binding on your estate executor and for many people, their remains will have been dealt with long before the will is reviewed so that your most critical step if such arrangements are important to you may be to prearrange your funeral and ensure that the next of kin who may first hear about your passing are aware of the arrangements

What Are The Legal Requirements Regarding Wills In Ontario?

As touched upon above, there are legal requirements in order to write a valid will. In Ontario, you must be 18 years or older (with exceptions listed above) to write a will. Additionally, you need to be mentally capable to write a will. This means that you understand what a will is and its implications, understand your property and its value and understand the impact your will has on your dependents. If there is any question about the will maker’s capacity to make a valid will, a capacity assessor can be retained to determine if the will maker is mentally capable of writing a will. 

Can A Will Be Challenged?

An individual can make a claim against a will or challenge a will. A claim falls into two categories, a dependent support’s claim and an equalization claim. A dependent claim can be made by a person who asserts that he or she was dependent on the deceased for financial support. An equalization claim involves claiming the increase in value of a property throughout a marriage. Challenging the fundamental validity of a will involves a claim that the will is invalid as a result of the will making process not meeting the formal legal requirements. If a will determined by a court to be invalid, the estate is distributed using Ontario’s intestacy rules. 

How Do I Update My Will?

Once you have created your will and it has been signed, it cannot be directly changed except under exceptional circumstances. You should either create a brand new will or create a codicil. A codicil is a separate document from your will that is completed in the exact same manner as a will. You can create a new will or a codicil as long as you still meet the legal requirements to write a will. Getting married or entering into a cohabitation agreement with a common-law partner can have an impact on your will unless the will was clearly made in contemplation of such circumstances.

Who Is My Estate Representative And What Is Their Role?

Your estate trustee is responsible for administering your will after you have passed. This person is named in your will and has multiple responsibilities as a representative of your estate. In Ontario, this person can be a family member; however, anyone could be named as your estate representative if you wish, as long as they are over 18 years old, understand their responsibilities as your estate trustee, and live in Ontario. Many of the legal requirements for estate trustees are outlined in the Estates Act, Estates Administration Act, and Trustee Act.

 

Contact Cohen Highley’s Wills and Estate Law Lawyers Today For Legal Advice On Drafting Your Will

If you require legal assistance from an estate lawyer, contact our law firm to book a consultation with our estate law team. Our lawyers are proud to represent clients across Southwestern Ontario and have decades of experience handling wills and estates. Our law firm has offices in London, Kitchener, Chatham, Stratford and Strathroy, making it easier for residents of Southwestern Ontario to access our services. Contact us today.

*Disclaimer: Please note the content prescribed in this article is only intended to act as a general overview of a legal topic. For specific legal guidance regarding wills and estates, we recommend you consult with an estate lawyer for legal advice as each situation is unique.

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