Where there's a Will there's a Way

By Winnie J Luk

Every adult should have a will. Surprisingly, more than half of adults in Ontario do not have one.

Having a will:

  1. ensures that your wishes are respected, and
  2. avails your loved ones and beneficiaries with more of your possessions and estate by saving them money, time, and effort.

By not having a will, you lose the freedom to decide on:

  • the guardian of your young children;
  • the executor or trustee (the person who will become in charge of your affairs) to handle your possessions and estate (including your bank account) (for e.g. the Public Guardian and Trustee may end up handling your money and delays in appointinng an Estate Trustee means that your financial affairs or small business is not being managed in the interim );
  • who gets how much of your estate and when (for e.g. your spouse will not automatically get all of it); and
  • tax and estate planning mechanism to avail more estate for your beneficiaries. (For e.g. dual wills will shelter certain assets from tax.)

You lose the freedom to decide on these key matters and the government's statute(The Succession Law Reform Act) decides for you. Often what the government's statute dictates is not what you would have wanted or necessarily best for your estate and loved ones. By not having a will, additional court procedures, fees, taxes and unnecessary delays to your estate and family will apply.

Your will should be prepared or updated revisited by a lawyer during the following triggering life events:

  • when you turn 18;
  • get marry or divorced;
  • buy or own property;
  • start a family;
  • start a business;
  • when your wealth changes;
  • when beneficiaries change or become incapable;
  • when your wishes change; and
  • every 5 years to revisit your wishes and check that the value of your estate matches your testamentary gifts in your will

Affidavit of Execution

Along with a will, an affidavit of execution should be prepared. This is a document where a witness affirms or swears that she or he and another witness were present when the will was signed. The affidavit of execution must be commissioned by a commissioner of oaths such as a lawyer. When it comes time to honour the wishes in the will, the affidavit of execution must be filed in court to have the will probated or validated. Once the will is validated, the wishes expressed in the will may be carried out. If the will cannot be probated validated, the law (The Succession Law Reform Act) will decide on how your estate will be handled.

If your wealth exceeds $500,000, in addition to a will, you may wish to consider more sophisticated estate-planning techniques such as trusts, estate freezes, life insurance and charitable donations. Consideration of foreign tax law would be necessary if you have assets outside of Canada. Special planning is sometimes needed for situations such as vacation property, a family business or a disabled child.

Landmark Law Professional Corporation may assist in preparing your will and affidavit of execution.

Disclaimer: This article does not contain legal advice and only provides general information. It is not intended to replace advice from a qualified legal professional and should not be relied upon to make decisions. In all cases, contact your legal professional for advice on any matter referenced in this article before making decisions. Use of this article does not establish a lawyer-client relationship.

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