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Disclaimer: This article, “What makes a will legal in Ontario?”, is intended for the purpose of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Movies and TV shows like to present final wishes dramatically, whether it is a recorded video or a deathbed utterance. However, what makes a person’s wishes legally valid?
You may be asking that question because you may be embarking on your own estate planning. Perhaps you are considering a will kit or another option and wonder if the courts will deem it valid.
Alternatively, you may be handling someone’s estate. The first step in executing a deceased person’s wishes is locating a will and ensuring it is valid. It is a crucial question: if the will is valid, then the distribution of the estate can move forward. If not, then your executor must take additional steps.
What standards must a will in Ontario meet? Estate law is governed primarily by the Succession Law Reform Act, which sets out the requirements for making a legally valid will.
This article will go through these requirements, including the requirements for a handwritten or holograph will (note that there is no such thing as a holograph power of attorney in Ontario). Finally, we will outline why you should seek more than the bare minimum in terms of a will.
Requirements for a valid and legal will in Ontario
In order for a will to be valid, the following must be true:
- It must be written in a physical form. What does that mean? It means that there must be a physical, hard copy, and not simply in a digital or online format.
- The testator (the person making the will) must be over the age of majority unless they are married, have children, or are members of the armed forces.
- The testator must be of sound mind.
- There must be witnesses to the testator signing the will unless it is a holograph will (which we will discuss further in this article). There are specific requirements as to who can be a witness when you are signing your will. It cannot be any of the following individuals:
- any beneficiary or his/her spouse
- the person named as executor or his/her spouse
- Previously, the testator and two witnesses needed to be in the same physical location while the will was signed. However, due to COVID-19, those requirements have changed. Virtual witnessing is possible if one of the witnesses is a licensed lawyer or paralegal. There are other requirements, such as confirming that all parties can hear and see each other. Additionally, the testator and witnesses must all sign identical copies of the will. These counterparts together will form your legal will.
- The signatures must appear at the very end of the will.
What if I find a handwritten will? Is it valid?
On occasion, someone will find a handwritten will amongst their loved one’s belongings and may wonder if it is valid. This is referred to as a holograph will, and like all wills, it must be in a physical format.
A holograph will does not require witnesses and only needs to be signed by the testator.
There are other requirements to be considered. A holograph will must:
- be entirely in the testator’s handwriting. This means that even documents referenced by the holograph will are not considered part of the will if they are typewritten.
- be a “full and final expression of intention as to the disposal of property upon death.” This means that it must be clear that the document was not meant to be a draft.
It is the responsibility of the person seeking to have a holograph will deemed valid to prove that it was written by the testator and that it was a final, full expression of the testator’s intentions.
If the will is deemed invalid, then the estate will be handled according to the previous will or, in the absence of a previous valid will, as per Ontario’s intestacy laws.
Even if it is deemed to be a valid holograph will, there may be court orders that are needed in order to authorize the executor to take certain steps with the estate’s assets. These court orders would not have been necessary had the deceased person had a well-drafted will in place, prepared by an experienced estate lawyer such as either of those at Beeksma Law.
More than the minimum
The requirements noted above are the bare minimum of what is required for a will to be valid. However, to fully protect your loved ones and your wishes, you need more than the bare minimum.
There are many provisions not required by law that are simply good practice. For example, we previously spoke about the role of an executor. While you are not required to name an executor, it is undoubtedly in your best interests to appoint someone to handle your affairs.
In the absence of that provision in your will, the courts will be called upon to appoint someone for that role. This process will delay your assets being distributed and your beneficiaries being able to move forward.
Of course, the more complex your life is, the more you will benefit from having professional legal advice about your estate planning. A seasoned lawyer will be able to spot areas that should be addressed before you pass, in order to save your surviving family the trouble of time-consuming and expensive legal disputes.
At Beeksma Law, we have a wide breadth of experience in estate planning and litigation. Our high degree of skill means that we can provide you with quality legal advice to take care of your affairs while you’re still around to appreciate it!
We also pride ourselves on preventing issues instead of just reacting to them. We can also help you limit any disputes after you pass and ensure that your affairs are dealt with as quickly and painlessly as possible.
Reach out to our team for a free consultation by clicking here. We would be more than happy to discuss your needs with you.
Disclaimer: This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance in choosing an executor. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Planning your estate involves many vital decisions, but few are as important as selecting your executor (who can also be referred to as an estate trustee). That is the person who is responsible for overseeing your estate, and in some cases dealing with your assets.
That person must execute the will correctly and in a timely fashion. This can be challenging if they are handling multiple estates. The executor also needs to deal with legal matters such as taxes, liabilities, and debts.
Clearly, it is a heavy responsibility, so you want to select that person only after careful consideration.
To help you out, we’ve compiled some tips on how to pick the right executor for your estate!
Do you have to choose an executor?
Short answer: no. A will is perfectly valid without one. However, should you? Unequivocally, yes!
Basically, without a will, no one can control your estate. Therefore, your beneficiaries would need to wait for the court to appoint someone in the event that you do not name one. Whenever the court is involved, you are looking at added costs in terms of legal fees and time for your estate. Therefore, by not choosing an estate trustee, you are causing your estate to lose unnecessary money in additional, and avoidable, legal fees because the court now has to appoint a person.
What will your executor do?
The executor’s obligation is to the estate’s creditors and the beneficiaries. Let’s briefly discuss in broad strokes what an executor’s responsibilities are. An executor is responsible for:
- Making funeral arrangements
- Taking possession of your property and assets
- Determining the value and managing the distribution of those items according to your will
- Applying for probate
- Preparing an accounting of the estate assets
- Filing the tax returns and applying for the Certificate of Clearance
- Paying off any debts or taxes owed by your estate before distributing remaining assets
An executor must keep accurate and complete records and receipts to satisfy the court and the beneficiaries that it has fulfilled its responsibilities. It is a massive undertaking and a significant time investment. Generally speaking, an executor will work on an estate for a minimum of 1-2 years following your death.
Who can be your executor?
In Ontario, executors must be at least 18 years of age and have the capacity to act.
That means that this person does not need to be related to you, although they certainly can be. As well, they do not have to live in Ontario (or even Canada), although it is undoubtedly more straightforward if they do.
Additionally, if the executor does not live in Ontario, then the Court will often require them to post an administration bond (which is equal to double the value of the assets of the estate). The executor can pay that into the court personally or obtain the funds from an insurance company that issues policies for administration bonds.
You can also choose more than one executor – although you must ensure that whoever you choose gets along!They will have to make all decisions together and sign off on all estate documents together. If there is friction between your co-executors now, then the heavy responsibility of handling your estate will certainly not make that relationship smoother.
You would be wise to name a backup executor. That person will become the executor if your first choice is unable or unwilling to serve as executor for any reason (for example, if they pass away before you).
If there are no co-executors and the only named executor dies before your passing, then it would be up to the courts to name the executor – which could take extra time and will certainly cost your estate more money.
Choosing an Executor
Now that you know who can be an executor, there are some other considerations as to how to choose the one that is right for you.
The most important advice that we can give is to choose someone that you trust; implicitly and fully trust.
The person you select to be your executor will have a lot of leeway for your assets. For example, that person can determine how much will go towards things like funeral costs and outstanding bills before being distributed among the beneficiaries of your estate.
That executor may also have some leeway in what happens with certain assets within the estate after death. For example, they might be able to make decisions about items not explicitly marked in your will.
It would be best if you were sure that you could trust this executor with all of your estate—and the life and future of whoever might inherit it.
Willing and Able
Being an executor is a significant responsibility and one that is time-consuming. Ensure that your executor has the time and energy to dedicate to completing all needed tasks. If you have an executor in mind who doesn’t live near you or has too many other responsibilities, then it would be wise to select another executor.
Taking the time to find an executor capable of handling all tasks and making decisions will save headaches later on after death.
You may select a trustworthy executor; however, you may be putting them in a difficult situation by asking them to execute specific duties.
For example, you may name your new spouse as your executor. However, that might create conflict in blended families and cause friction with surviving children from a previous relationship.
Think carefully about who could be objective in carrying out your final wishes, especially if you have a complicated estate or family situation.
Naming Your Executor
Given the level of commitment required to being an executor, you will first want to ask the person you choose. That is not something that you want your executor to discover after you pass.
Next, make sure it is included in your current will and estate documentation.
Finally, give thought to whether that needs to change from time to time. That person may have been willing and able to at the time, but is that still true?
Additionally, certain life events should trigger you to consider whether a change is needed. Have you gotten remarried? Are your children now adults? Have you or your executor moved to a different province or country?
Have you obtained assets in a different country? Did you start a business that has begun to grow and find success? You should pause and consider whether you need to change your executor.
The Beeksma Law Advantage
At Beeksma Law, we understand that thinking about the end of your life is not a pleasant task. However, the more planning you do today, the easier the process will be on your surviving family.
Our team looks at your life, family, and assets to help you arrange an estate plan that best serves you.
If you would like to speak more about your estate plan, then book a free consultation today. Our team would be happy to connect with you.
Disclaimer: This article on starting a business in Ontario is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
If you are starting a business in Ontario, welcome and congratulations! It is so exciting to see people take their passion and ideas and build a business.
We’re sure you have done a lot of planning and preparation to get you to this point, including market research and deciding on your business name. You have a strong idea of your product or service and how you are going to bring it to market.
However, you may also be feeling a little overwhelmed with the legal side of things. You may be getting conflicting advice and having a hard time sorting out what you need to do to protect this wonderful business you are creating.
In this article, we will answer your frequently asked questions and help you find peace of mind as you embark on your journey into entrepreneurship!
Question #1: What kind of business structures can I choose from?
Assuming you are a for-profit business, you have five choices: a sole proprietorship, a partnership, a joint venture, a limited liability partnership, and a corporation.
A sole proprietorship is a business owned and run by one individual with no distinction from the owner. It’s easy to start, but your personal assets are exposed in the event of a lawsuit.
Partnerships have two or more owners who contribute their capital and/or skills for a share of profits without being taxed as a unique entity. They also share in the liabilities of the partnership.
Joint ventures are two or more people who come together to collaborate on a project. They may contribute their capital and/or skills with an agreement that allows them to keep their profits and liabilities separate.
Limited liability partnerships are a combination of a partnership and the tax benefits of a corporation. Only certain professions, such as lawyers and accountants, can form limited liability partnerships.
Finally, a corporation is a distinct legal entity that is owned by the shareholders. It can sue and be sued, as well as purchase and sell property. The shareholders are not personally liable for the corporation’s debts or liabilities except to the extent of their investment in stock.
Question #2: Do I need to register my business name?
In Ontario, you need to register your business name if you are doing business as anything besides your legal name.
Fortunately, applying for a master business licence is a fairly easy process and can be done online. You’ll want to first do a search to make sure that your name is not already being used.
Master business licences are valid for five years. So once you register yours, be sure to mark down the renewal date.
Question #3 – Should I incorporate right away?
We devoted an entire blog to this question, but here is the short answer: maybe.
It is not always necessary to incorporate your business right away, and it would be wise to weigh the pros and cons. On one hand, you are limiting your own personal liability and may be in line for some tax benefits. On the other hand, incorporating incurs extra expenses and you must file additional paperwork on an annual basis.
If you do decide to incorporate, you’re going to want to involve a lawyer in the process. A skilled lawyer will be able to ensure that your Articles of Incorporation not only serve your needs today, but will continue to do so down the road.
Question #4 – What contracts do I need?
It will, of course, depend on your business but some contracts that a new business may need include a service contract, employment contract, lease, and non-disclosure agreement.
If you opt to form a partnership, then a key contract that you will need is a partnership agreement setting out how your business will be run. Similarly with a joint venture, you will need a joint venture agreement.
Question #5 – Do I really need contracts in place?
Question #6 – Do I need a contract if I’m doing business with my brother, mother, best friend, etc.?
Having contracts in place protects your business and your relationships. Memories can fade. What you agreed to in an oral conversation and what you remember years later may be completely different.
A contract will clearly spell out the terms and conditions of the agreement for both parties. It will also establish remedies if one of you does not live up to your contract’s terms. Spelling out your expectations clearly will minimize disagreements and prevent misunderstandings from becoming a larger issue.
Question #7 – Can I use online templates?
You can, but even then you will want a lawyer to review them. It is hard to know if online templates are accurate and if they fit your business needs.
In particular, a common issue that we see is a client who downloads a template that is not even drafted for use in Canada, let alone Ontario (e.g. American templates). That kind of template is virtually useless to you, which is another reason why you need to have a lawyer involved.
As well, a client recently approached us. She had been using an online template. With changes in her business, there were areas where her contract was unclear and it was negatively affecting her business.
Discussing your contracts with a lawyer will ensure that your contract fits your needs and covers the terms that are important to you. As well, an experienced business lawyer will see gaps that you may not even realize are there!
A well-drafted and comprehensive contract will help protect you. However, it is only as good as the person who wrote it. Having a lawyer draft your contracts can give you peace of mind that someone else has taken care of looking out for your best interests.
Where can I find advice that I can trust?
From Beeksma Law, of course!
At Beeksma Law, we have extensive experience helping entrepreneurs build strong legal foundations for their businesses. We are active within Ontario’s business community and love helping others succeed.
If you would like to learn more about how you can get your business started off on the right foot, then book a call with us today. Our team would be more than happy to discuss your business needs.