A Last Will and Testament is a legally binding document that outlines instructions for the distribution of assets, appointment of guardianship for minor children, and other matters after an individual’s death.
Benefits of Will
Ensures assets are distributed according to the individual’s wishes, providing peace of mind.
Allows for the appointment of guardians for minor children and pets, ensuring their well-being.
- Helps minimize estate taxes, preserving more assets for beneficiaries.
- Can expedite the settlement process and avoid lengthy probate procedures for family members, reducing stress and costs.
Probate Process
- Validates the authenticity of the will and appoints an executor
- Determines distribution of assets according to the will OR appoints an estate trustee if there’s no will.
- Essential for transferring assets held by financial institutions; often required even if probate is not necessary.
Legal Requirements for a Will to be valid in Ontario
- The Testator must be of sound mind and over the age of majority of 18 years.
- The Will must be made by the Testator as no one else can make it on their behalf.
- The Will must be signed in the presence of two valid witnesses. A witness should not be a beneficiary or the spouse or parent of any beneficiary.
- The testator’s signature must be at the last page of the Will, with initials on each page of the document. The witnesses also must sign the last page of the Will.
- The Will must be signed in wet ink – a pen, seal, or other identifying mark, and stored as a physical copy. Online storage is not accepted due to security and authenticity concerns./li>
- The witnesses cannot be beneficiaries, executors, or their spouses to avoid conflicts of interest, safeguarding the impartiality of the witnessing process.
Legal Requirements for a Holographic Wills to be valid in Ontario
- It must be entirely handwritten by the person making the will.
- The person making the will must sign it at the end.
- The will must clearly state the person’s final wishes for their property after they pass away.
- Any gifts mentioned in the will must be written above the person’s signature to be considered valid.
- Unlike regular wills, a Holographic Will doesn’t need witnesses to be present.
- While it’s not necessary, dating the Holographic Will can be helpful for clarity.
Changes to Existing Wills
- A Codicil is a legal document used to make minor changes to an existing Last Will and Testament.
- It follows the same signing requirements as a Formal Will, needing to be handwritten with the date and signature at the end.
- Codicils are typically used to update details like the executor’s name, guardians, beneficiaries, or specific bequests.
- It’s generally advised to limit the number of Codicils to avoid potential confusion about the Testator’s intentions.Top of Form
FAQs
Why is it crucial to periodically review a will?
Periodic review ensures the will remains current and reflects significant life changes or circumstances.
What major life changes might necessitate a modification to a will?
Major changes like marriage, separation, divorce, births, deaths, asset changes, and residency shifts may require a will modification.
How can changes be made to a will when necessary?
Changes can be made through a codicil for minor adjustments or creating a new will for substantial changes.
What is the role of a codicil in the modification of a will?
A codicil amends specific provisions without creating a new will, suitable for minor changes.
When is it preferable to create a new will rather than using a codicil?
Creating a new will is preferable for major changes or when numerous minor adjustments occur, ensuring comprehensive and accurate reflection of the testator’s intentions.
How did marriage affect wills in Ontario before January 1, 2022?
Prior to this date, getting married in Ontario automatically revoked any will signed before the marriage.
What happened if someone died without updating their will after getting married?
If a person passed away without creating a new will post-marriage, their estate would be distributed according to intestacy laws.
What changed in the law regarding marriage and wills after January 1, 2022?
Post-2022, marriage no longer automatically revoked a pre-existing will for Ontario residents.
What's the recommendation regarding existing wills and marriage in Ontario post-2022?
It's advisable to review any will signed before marriage to ensure it reflects your current wishes, given the new legal framework.
How did separation without legal divorce affect the wills of married couples before the new rules?
Separation didn't impact wills; separated spouses retained their rights unless specified otherwise.
What happened in terms of wills if there was no valid will in the case of separation?
Default intestacy rules applied in the absence of a valid will.
What about common-law spouses and their wills upon separation? A:
Common-law spouses had no claim to each other's estate upon separation.
What changes were implemented regarding wills and separation starting January 1, 2022?
If married couples were separated for three years without divorce, the surviving spouse lost rights as executor or beneficiary upon the other's death.
Were there any exceptions to the new rules for married couples regarding separation agreements?
Even if separated via agreement, rights were revoked upon death, regardless of marriage duration.
Do the changes regarding wills and separation apply to common-law spouses?
No, common-law spouses aren't affected; they can use a cohabitation agreement for property distribution upon separation.
What were the distribution rules under intestacy if the deceased had a spouse and children?
If the deceased had a spouse and children, the spouse would inherit everything unless the estate's value exceeded $350,000. In that case, the spouse received $350,000 first, and the remainder was divided between the spouse and children
Note: “The information herein is provided for informational purposes only and should not be construed as legal advice”
