Wills are a common way for individuals to determine how their estates will be managed upon their death. However, it is estimated that a significant portion of Ontarians do not have valid wills. When a person dies without having created a will, they are considered to have died intestate, and the distribution of their estate is determined by Ontario’s laws of intestate succession.
The individual who creates a will is known as the testator. Upon the testator’s death, the court follows the instructions outlined in the will to distribute their assets. For example, a testator may specify that their home, car, furniture, household items, clothing, and jewelry be given to a particular individual or beneficiary. Some people use their wills to express their feelings toward loved ones. A properly executed will simplifies the process of transferring property and can help minimize the tax burdens for the survivors.
Holographic Wills
A holographic will is a handwritten and unwitnessed will. In Ontario, while holographic wills are recognized, they can be difficult to validate. It is strongly recommended that individuals avoid relying solely on a holographic will, as it may be subject to legal challenges or confusion.
Wills can range from simple documents to complex ones, depending on the size of the estate and the testator’s preferences. A will typically begins by designating the estate and beneficiaries. It may also include instructions for the care of children, charitable donations, and the establishment of trusts. Some testators may also choose to disinherit individuals who would otherwise be entitled to inherit under intestacy laws. To ensure that a testator’s wishes are fully executed, it is crucial to follow the legal formalities.
Formal Will Requirements in Ontario
In Ontario, the basic requirements for a valid will include:
- The testator must have legal capacity (i.e., be of sound mind and at least 18 years old).
- The will must be in writing.
- The testator must sign the will.
- The signing of the will must be witnessed by at least two individuals who are not beneficiaries.
A will remains valid unless it is revoked or replaced by a subsequent valid will. A will can also be amended by adding a codicil, which is an amendment that does not require a complete rewrite of the will.
Legal Limitations on Wills in Ontario
While individuals have considerable freedom to dispose of their estate as they see fit, Ontario law places certain limitations. For instance, a testator cannot completely disinherit a spouse without their consent. If a surviving spouse is dissatisfied with the provisions made for them in the will, they may have the right to claim a portion of the estate under Ontario’s Family Law Act. Similarly, minor children may not be fully disinherited. If a child is financially dependent on the testator, they may be entitled to claim support under the Succession Law Reform Act.
It is important to clearly state any intentions to disinherit individuals who may be legally entitled to inherit under intestacy laws to avoid potential legal challenges.
Key Fact
It is advisable to appoint a successor executor in a will, in case the primary executor is unable or unwilling to fulfill their duties. A will can also appoint co-executors to carry out the executor’s responsibilities together.
Role of an Executor
The executor of a will is responsible for ensuring that the testator’s wishes are carried out after their death. Executors are often family members, but they do not have to be. It is important that the executor understands their responsibilities before the testator’s death. The executor’s duties include managing the estate, paying any outstanding debts, distributing assets to beneficiaries, and filing necessary court and tax documents.
Intestacy in Ontario
When a person dies without a valid will in Ontario, the estate is divided according to the Intestate Succession Act. The estate is first used to pay any outstanding debts and funeral expenses. If the deceased had a spouse and children, the estate is divided between them based on a predetermined formula. If there is no spouse or children, the estate may be divided among other relatives, such as parents, siblings, or more distant relatives. In the absence of any surviving relatives, the estate may ultimately go to the government.
Intestate succession can be complex, time-consuming, and costly, and it often leads to outcomes that the deceased person may not have intended. For example, distant relatives or the government may inherit the estate, and friends or charities may be excluded. Intestate estates may also face significant tax burdens.
Conclusion
To avoid complications and ensure that an individual’s estate is distributed according to their wishes, it is highly recommended that everyone in Ontario prepare a will with the assistance of a qualified attorney. A well-drafted will can save time, money, and reduce the emotional burden on survivors.