Your Last Will and Testament: Frequently Asked Questions

Your Last Will and Testament:

Frequently Asked Questions

Renfrew County Legal Clinic

236 Stewart St., Suite 101

Renfrew, ON K7V 1X7

June, 2020

Table of Contents

What is a will? ................................................................................................................... 3

What usually goes in a will? .............................................................................................. 3

When does a will take effect? ............................................................................................ 4

What don’t wills do? .......................................................................................................... 4

Living wills ........................................................................................................................ 4

What does a will need in order to be valid?....................................................................... 5

Witnesses............................................................................................................................ 5

Who can make a will? ........................................................................................................ 6

Testamentary capacity ........................................................................................................ 6

Can my son or daughter make a will for me? .................................................................... 7

What is an executor? .......................................................................................................... 8

Who can be my executor? .................................................................................................. 9

Is my executor responsible for paying my debts? ........................................................... 10

Should I have more than one executor? ........................................................................... 11

I have chosen an executor. Now what? ............................................................................ 13

What if I have no one in my life who can be my executor? ............................................ 13

Are there rules about who can benefit under my will? .................................................... 14

How should I deal with my personal belongings? ........................................................... 15

Should I include funeral instructions in my will? ............................................................ 16

What if I do not make a will? .......................................................................................... 17

Can I make a will without a lawyer? ............................................................................... 18

When is a will revoked or cancelled? .............................................................................. 19

Can I change my will? ..................................................................................................... 19

Do wills need to be registered? ........................................................................................ 20

Do wills expire? ............................................................................................................... 20

What if I lose my will? .................................................................................................... 20

What should I expect when I meet with a lawyer? .......................................................... 21

What is a Will?

A will is a legal document that sets out what will happen to your money and

property after you die. It is your chance to communicate your final wishes to your

family and loved ones. Your will allows you to make arrangements so that it will

be easier for your loved ones to wrap up your affairs.

What usually goes in a will?

Wills communicate your wishes about how your property and money will be

distributed when you die. Wills commonly include the following:

 The name of an executor or estate trustee who will be responsible for

carrying out your wishes.

 The name of a guardian to care for any minor children.

 Specific gifts of money, personal property or land.

 Directions about who should get the rest (or remainder) of your money

and property.

 Instructions that allow money to be held in trust for certain beneficiaries

(for example, children or people with disabilities).

Wills can also include funeral instructions, gifts to charitable organizations,

arrangements for pets, and more.

When does a will take effect?

Wills take effect the moment you die. Your executor does not have the authority

to do any of their duties under the will before you have passed away. Your

beneficiaries do not have the right to access their inheritance before you have

died.

What DON’T wills do?

Wills do not give anyone access to your money or property while you are still

living. The will does not give your executor the right to take over any decision-

making for you while you are alive, even if you become incapable. If you want to

name someone to manage your money or make personal care decisions for you

while you are still alive, you will need to complete Powers of Attorney.

Wills also do not typically include health or personal care instructions. In

Ontario, the term ‘Living Will’ is not used, but you can include health care

instructions in a Power of Attorney for Personal Care. Since your Last Will and

Testament takes effect at your death, it does not deal with health care

instructions.

What does a will need in order to be valid?

In Ontario, wills need to be in writing in order to be valid. Talking to your loved

ones about what should happen to your money and property is sometimes useful,

but your wishes are not legally binding unless they are properly written down.

Wills must be signed at the end of the document. Generally, unless your will is

completely in your own handwriting, it needs to be witnessed by two people.

will that is completely in your own handwriting is called a holograph will.

Holograph wills do not need to be witnessed, but they do need to be signed at

the end.

Witnesses

There are certain requirements for witnesses to wills: witnesses must be at least

18 years old; they cannot be a beneficiary (someone who will inherit under the

will) or the spouse of a beneficiary, and; they must be competent at the time they

witness the will.

If you are working with a lawyer, the lawyer will usually

arrange for the will to be properly witnessed. Often a lawyer will ask one or both

witnesses to sign an Affidavit of Execution after they witness your will. The

Affidavit of Execution is a sworn statement from a witness that they saw you

sign your will. The Affidavit can be helpful in case the witness cannot be located

after you have passed away.

Who can make a will?

In Ontario, anyone can make a will as long as they are at least 18 years old

and have testamentary capacity. Testamentary capacity means that the person

making the will:

 Understands the nature and effect of the will

 Knows what they own

 Understands what they will be giving away

 Remembers the people they might be expected to benefit under their

will; and

 Understands the possible claims that could be made by people they

are leaving out of the will

If a person does not have testamentary capacity when they make their will, the

will is not valid. When lawyers prepare a will for a client, they need to make

sure the client has testamentary capacity. They need to ask questions and make

thorough notes. If the lawyer decides that their client does not have

testamentary capacity, they will not be able to help that person with their will.

Can my son or daughter make a will for me?

In Ontario, no one can make a will for another person. A lawyer can draft

a will for you, but they will be following your instructions about what

you would like to do with your money and property. If you have named

someone as your Attorney for Property under a Continuing Power of

Attorney for Property, that person can manage your money and property

for you while you are living. They cannot decide what will happen with

your money, property or belongings after you have died.

You can choose to consult with your family about how to make your

will, but all of the decisions are yours to make.

What is an executor?

An executor, also called an estate trustee, is the person who will do all

the work to carry out your wishes after you pass away. They will follow

the instructions in your last will and testament.

Some of the duties of an executor include:

 Making funeral arrangements

 Arranging for your home to be cleared out

 Making sure your debts and any outstanding bills are paid (out of

your money and assets)

 Making sure the right people get their inheritance

 Closing your accounts

 Filing your final tax return

Who can be my executor?

Your executor can be just about anyone you choose, with a few exceptions.

They do not need to be a family member. They must not be bankrupt or

incarcerated. They are not required to live in Ontario, but it is easier if they

do. Your executor must be at least 18 years old at the time you pass away.

Some questions to ask yourself when you’re thinking about who to choose

may include:

 Is the person likely to be willing and able to be your executor when you

die?

 Is the person trustworthy and honest?

 Is the person good with money?

 Are they organized and good at keeping records?

 Can they do tasks involving reading and writing, or get help from

someone else with these tasks?

 Can they handle stress?

 Do they live close by?

 Will they work well with the people who are going to benefit under your

will?

Is my executor responsible for paying my debts?

Your executor is responsible for making sure any debts you have are paid

out of the money and assets you have left over. Your executor does not

generally have to use their own money to pay your debts. They could be

held responsible if they do not do a proper search for your creditors, or if

they mishandle your estate, even if it was not done on purpose.

It is a good

idea for executors to consult with professionals such as lawyers,

accountants and investment advisors to avoid making expensive mistakes.

Should I have more than one executor?

It is always a good idea to have a back-up plan in case your executor cannot

act for you. Your executor could move away, die before you or become ill.

You can have as many substitute executors as you would like.

You can also choose to name more than one person to act as your executor

at the same time. There are some important things to consider first. For

example:

 Will the people you want to name be able to work together? Do they

get along?

 Do the people you want to name live close together? If not, it may

become difficult for them both to sign off on documents and make

arrangements to do jobs together.

In general, carrying out your wishes becomes more complicated when you

name more than one person to act as your executor at the same time.

It is

often easier to name one person to act alone, with one or more substitutes.

I have chosen an executor. Now what?

Always make sure you have talked to the person you want to name as your

executor before you decide to rely on them. No one can be forced to be your

executor against their wishes. Executors can also resign after they have already

started in the role. If the person you named decides not to act for you and you

have not named a substitute, then you will have no executor. It is better to know

in advance if the person doesn’t want to be your executor so you can make other

arrangements.

If there are other people who might be unhappy about not being your executor, it

is also a good idea to talk to those people and explain your choice. You may want

to explain that being an executor is a lot of work. It involves paperwork and

dealing with funeral homes, banks and the government. It is not simply a matter

of choosing your best friend or favourite family member. It is about who is best

suited and available for the job.

Once you have decided on an executor, give their full name to your lawyer. When

your lawyer writes up the will, he or she will include the executor’s name. After

your will is executed, or signed, by you and your witnesses, you will not need to

do anything further unless you want to make changes in the future. Your executor

does not need to sign the will.

Make sure that your executor knows the location of your will so that they can find

it when you die. If you don’t live with your executor, make sure that your family,

friends, caregivers and landlord know how to contact them when you pass away.

What if I have no one in my life who can be my executor?

Many people do not have anyone in their life who is willing and able to be an

executor. Be sure to talk to a lawyer if this is your situation. There are options,

including naming a legal professional or trust company to be your executor. You

can also name more than one person so that jobs can be divided up, or in case one

person becomes unable to continue.

Are there rules about who can benefit under my will?

Generally, you can leave money or property to anyone you choose under your

will. Your beneficiaries do not have to be close family members or your children.

You can even choose to benefit charitable organizations.

If you are Indigenous and living on a reserve, you may have to follow certain

rules that are specific to your band. It is a good idea to talk to a lawyer with

experience doing wills for people in your band or First Nation.

There are some limits on the types of conditions you can place on gifts. Also,

certain beneficiaries, such as children under 18, may not be able to access their

inheritance right away.

In some cases, people you leave out of your will can make claims against your

estate. If you are married, your spouse will also have certain rights to your estate.

If you do not wish to leave anything to your immediate family, talk to your

lawyer about how to minimize the risk of claims against your estate.

How should I deal with my personal belongings?

One way to deal with your belongings is to list specific personal items that you want to

go to particular people, but there are many other options for dealing with your personal

belongings. These include:

 Leaving all your personal belongings to one person

 Donating your belongings to a charitable organization

 Directing that everything must be sold, and the money given to one person or di-

vided among several people

 Allowing your executor or your beneficiaries to decide how to divide up your be-

longings

 Give personal belongings to specific people while you are still alive.

 You can include information about the object's history as well so that the person

knows why it is special to you."

Please note that if you have debts when you die and there is not enough money left to

pay them, your personal belongings may have to be sold to pay off your debts.

Should I include funeral instructions in my will?

You can choose to include funeral instructions in your will, but they are not legally

binding. That means that your executor will make the final decision.

If you have particular wishes, you should make sure your executor knows about

them. Your executor may or may not see your will before your funeral

arrangements have to be made.

If you are involved with a religious organization, you can talk to the leader about

your wishes while you are living. You can also contact a funeral home or

crematorium and make arrangements in advance. You can choose whether or not to

pre-pay for your funeral. Make sure to let your executor know if you have made

arrangements with a religious organization or funeral home.

What if I do not make a will?

If you die without a will, the court can appoint someone to administer your

estate or act as your executor. Family members can apply to be your estate

trustee, and so can creditors.

The Succession Law Reform A ct deals with what happens to a person’s

estate if they die without a will in Ontario. How the estate will be divided

will depend on the person’s family circumstances. For example, if you are

married with no children, your husband or wife will generally get

everything (even if you have separated and are no longer living

together!).

11*

*This applies whether you are married to a person of the same sex or the

opposite sex. It does not apply to common-law partnerships, which are

treated very differently.

Can I make a will without a lawyer?

You do not need a lawyer to make a will, but it is easy to make a mistake

without formal legal education and training. Estate planning and will

drafting are complicated and have many technical requirements. Even

people who have been formally trained can make mistakes.

If you make a mistake, your wishes may not be carried out in the way

you hoped. A friend or family member may not get their inheritance, or

your beneficiaries can end up arguing about your wishes in court. If your

will becomes the subject of litigation, any money assets that you had can

be eaten up by legal fees.

It is always best to hire a lawyer if you can. There are also some limited

free community resources for people who cannot hire a lawyer (see page

23).

When is a will revoked or cancelled?

A will is revoked, or cancelled, when the person who made the will:

 Gets married

 Destroys it with the intention of revoking it

 Makes a new will

 Revokes it in writing (with certain requirements)

Getting a divorce does not revoke a will, but the will is read as though

your ex-spouse has died before you.

If you get a divorce, it is a good

idea to review your will with a lawyer to discuss how your will would be

interpreted if you do not update it.

Can I change my will?

You can decide to change your will in the future, with limited exceptions.

You must continue to have testamentary capacity. If you lose your

capacity because of illness or disability and you do not regain it, you will

no longer be able to make a new will or change your old one. The last

version of the will that is valid will be used.

Do I need to register my will?

In Ontario, you are not required to register or

publish your will.

You should make sure that

the person who is going to be your executor

knows where to find your original will (and not

simply a photocopy). If you do not live with

your executor, make sure that your family,

friends or caregivers know how to reach them.

Do wills expire?

In Ontario, wills do not expire. An old will is

often still valid even though the person’s life

circumstances have changed.

If your

relationships or personal circumstances have

changed since you made your will, it is time to update it. It is a good idea to read

through your will every five years to make sure it does not need updating.

What if I lose my will?

If you lose your original will (the version that is not a photocopy), then your

executor will likely have a difficult task ahead of them. The court will assume

that you destroyed the will in order to revoke it. The executor or your

beneficiaries will have to try to prove that you did not destroy it or revoke it.

Also, they will have to try to convince the court of what was actually in the

will.

Always store your will in a safe place where your Executor can get to it. They

must be able to find the original will. Be aware that landlords may want to see

the original will before they let the executor into your apartment. A bank would

also want to see the original will before allowing your executor to go into your

safety deposit box.

What should I expect when I meet with a lawyer?

When you meet with a lawyer to discuss making your will, the lawyer will ask

you for a piece of valid photo identification. They will have a lot of questions

for you about your finances, assets and debts. They will want information about

your family. They will often ask to see paperwork confirming what assets you

have so that they can properly prepare your will.

Lawyers should meet with you alone. They will need to take instructions from

you, and not your family or friends. Part of their job is to make sure that no one

has pressured you into doing something you don’t want to do. Anything that

you tell your lawyer is confidential. The lawyer cannot discuss anything with

your family, friends, bank or caregivers without your permission.

After you give your instructions to the lawyer, they will prepare your will for

you. Make sure you review the will carefully before you sign it. If you are not

good at reading, you have a visual impairment or you are not comfortable with

English, your lawyer should take extra steps to make sure you understand what

is in the will. Do not be afraid to ask questions. The will is your document, and

it needs to reflect your wishes.

Endnotes

1 Estates Administration Act, RSO 1990, c E22, s 2.

2 Succession Law Reform Act, RSO 1990, c S26, ss 3-4.

3 Ibid at s 6.

4 Ibid at s 12.

1. Banks v Goodfellow (1870), LR 5 QB 549

6 Trustee Act, RSO 1990, c T23, ss 48-59.

7 Albert H. Oosterhoff, Oosterhoff on W ills and Succession, Seventh Edition, (Toronto: Thomson Reuters Canada

Limited, 2011) at p 60; Ibid at s 50.

8 Ed Esposto, Laura Kerr & Corina Weigl, “The Annotated Will 2016” (Wills and Estates Practice Basics delivered

at The Law Society of Upper Canada, March 22, 2016)[unpublished] at 15-16.

9 Robin Solnyk, Mary-Alice Thompson and Brian Gillingham, Drafting W ills in Canada: A Lawyer's Practi

cal Guide, 2nd Edition, (LexisNexis Canada, 2016) at

10 Estates Act, RSO 1990, c 21, s 29.

11 Supra note 2 at s 44.

12 Supra note 2 at ss 15-17.

13 Supra note 2 at s 10.

14 Supra note 2 at 17.

15 Supra note 7 citing Alston v Wagar Estate (1996), 10 E.T.R. (2d) 274 (Ont. Gen. Div.) and Re Flaman Estate

(1997), 18 E.T.R. (2d) 121 (Sask Q.B.)

Community Resources

Renfrew County Legal Clinic Seniors’ Program

236 Stewart St., Suite 101

Renfrew, ON K7V 1X7

613-432-8146 OR

1-800-267-5871

Provides free wills and powers of attorney to low income people aged 60+