FAQs

No. Becoming separated from your spouse does not impact your will. If you pass away while you are separated, your spouse may still inherit under your will. It is important to have a new will drafted upon separation.

If you die without a will (which is also called dying intestate), your estate will be dealt with in accordance with the Succession Law Reform Act (SLRA). In the event that you are married and have no children, your husband/wife will receive your property. If you are not married, but live in a common law relationship, your common law spouse will not inherit any of your property, but they may be able to make a claim for support against the estate.

In the event that you die without a will and are married with children, the SLRA states that the surviving spouse gets a preferential share, and the balance is divided between the surviving spouse and children. If a person dies without a spouse or children, then the deceased’s parents would inherit the estate. If the deceased had no surviving parents, then his or her property would be divided equally among his or her brothers and sisters.

If any brothers or sisters have predeceased the person who has died, the share of that brother or sister is divided equally among his or her children. In the event that a person dies without a spouse, heirs, or next of kin, their property will escheat to the Crown, which means that the government will receive the property of the estate.

A divorce will cause any provisions of your will that deal with your ex-spouse to become invalid. The rest of your will remains valid, but it may be difficult to interpret the remainder of your will, and it is important to have a new will drafted.

There are two types of power of attorney: Power of Attorney for Property, and Power of Attorney for Personal Care. In the event that you become incapacitated, these documents would allow your Power of Attorney to act on your behalf. With respect to the Power of Attorney for Property, your Power of Attorney would be able to deal with your property on your behalf. The Power of Attorney for Personal Care allows the appointed individual to make decisions on your behalf with respect to your medical health and welfare, and provides you the opportunity to outline your wishes with respect to life support.

If you have children, your Will provides an opportunity to appoint a Guardian. Many do not realize that the appointed Guardian must apply to Court within 90 days for formal approval; if the appointed Guardian is deemed inappropriate the Court will overrule and appoint another Guardian. Although the Court has this power, the Will is an important indication of your wishes and this preference carries significant weight. A guardian is appointed for the care of the child as well as for his or her property.

It is important to have Powers of Attorney for Property and Personal Care. In the event that you become incapacitated these documents would provide your Attorney to act on your behalf. With respect to the Power of Attorney for Property, your Power of Attorney would be able to deal with your property on your behalf and essentially step into your shoes.

These Powers of Attorney for Property may take effect immediately, or on a subsequent incapacity. Powers of Attorney may apply to any incapacity in the future, or to allow the Attorney to act for a specific period, for example if you were to leave the country. The Power of Attorney for Personal Care allows the appointed individual to make decisions on your behalf with respect to your medical health and welfare and provides you the opportunity to outline your wishes with respect to life support or resuscitation.

These are commonly referred to as Living Wills. It is important to note, without a Power of Attorney for Personal Care you are risking that a Board of Directors of your caring hospital will make decisions regarding your welfare should you become incapacitated.