Area of Law: Wills, Estates and Powers of Attorney
Answer # 139
What is a Will and who should have one?Region: Ontario Answer # 139
What is a Will ?
A Will is a legal document that you create in order to deal with your assets and the custody of minor children in the event of your death. A Will does not take effect until the person dies. It is estimated that fewer than 50% of Canadians have a Will. Every adult who has children or owns property should have a Will.
A Will performs several important functions.
- If you have children who are minors, meaning under the age of 18, a Will gives you the opportunity to name a guardian and state your wishes as to who will look after your children and their property if you die;
- It lets you leave instructions for how you want your property to be divided and distributed when you die. This can include everything from land, bank accounts and investments, to all of your personal possessions;
- It lets you name a person who will wrap up all of your personal affairs, and who will carry out the instructions you left in your Will. This person is called a personal representative, executor or trustee; and
- A Will can also be an important part of estate planning to minimize your tax burden when giving your property away.
What if you die without a Will ?
If you die without a Will (intestate), your property will be divided according to the laws of Ontario. A set procedure will divide property according to family relationship. Even if you want your property divided exactly as it would be according to Ontario laws, you should still have a Will because it will reduce delays and expenses involved in wrapping up your affairs.
Requirements for a valid Will
For a Will to be valid, a few important requirements must be met.
1. A Will must be in writing and signed. If any of it is typed or not in the handwriting of the person making the Will, it must be signed in front of two witnesses, and the witnesses must also sign.
In Ontario, Wills and Powers of Attorney can be signed and witnessed virtually. This means that the person making the Will and the two witnesses can be on a video call to witness the signing of Wills and Power of Attorney documents, as long as one witness is a licensed lawyer or paralegal.
2. The Testator (person making the Will) must be 18 years of age or older, or if under 18 you must be:
- contemplating marriage (but the Will is not valid until the marriage takes place),
- a member of the Canadian Armed Forces, or
- a sailor at sea.
3. The Testator must be mentally competent to make a Will. Generally, a person is mentally competent if they can understand the purpose and effects of making a Will. This can be an important question if the person making the Will is elderly.
New rules for previously ‘invalid’ Wills
Bill 245 Accelerating Access to Justice Act, 2021 came into effect January 1, 2022, making a number of changes to the Succession Law Reform Act (SLRA).
One important change is that previously, if a Will was not perfectly executed and did not follow every single rule, it was considered “technically invalid’. As of January 1, 2022, courts can deem a Will that is ‘technically invalid’ as legal. For example, courts can declare a Will that was only signed by one witness instead of two legal. This is known as “substantial compliance”.
Getting the legal help you need
Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
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