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Making a Will in Ontario

According to a BNN Bloomberg report, 54% of the population in Ontario lacks a valid will. That’s quite concerning when you consider that without this legal document, the laws of intestacy will determine who inherits your estate. This may not reflect your true desires and can lead to conflicts amoung your loved ones, while creating an uncertain future for your assets. This is why it is extremely important to make sure that you create a valid and enforceable will that you are able to update and keep current over the course of your lifetime.

Making a Will in Ontario

In this article, we will explore the process of making a will in Ontario, the legal requirements, and all the key components that you should include in your will to ensure its validity and enforceability.

Key Components of a Will

Source: Freepik

A well-drafted and legally binding will should have the following key components:

Testator Information

The core element of any will is clear identification of the testator, who is the person to whom the will belongs. They will decide how their property and assets will be distributed after they pass away. Generally, this section involves specifying the full legal name, address, and date of birth of the testator.

Executor Details

An executor will handle all aspects of your estate by managing tasks such as paying off any outstanding debts, distributing assets to the listed beneficiaries, and handling any legal matters that are related to the will.  A valid will should name one or more executors along with their contact information.

Assets Distribution

This section details how the testator’s assets are to be distributed among the beneficiaries as per the estate planning goals of the testator when they wrote the will. They will identify who will inherit specific assets and make provisions for their distribution. Besides real estate, it should list all significant assets such as investments, valuable personal items, and cash reserves.

Guardianship of Dependents

For testators with dependents (minors or disabled people), appointing a guardian is a critical component of the will. This section should clearly name the guardian(s) who will be responsible for the care of the dependents upon the testator’s death. The appointment of a guardian is a personal decision that may change over time and can be amended as needed. 

Legal Requirements for a Valid Will in Ontario

To ensure your will is legally valid in Ontario, you must comply with several key requirements outlined in the Succession Law Reform Act. Here’s a quick overview of legal requirements:

Mental Capacity

You must be mentally capable of making a will. This means you understand the nature of the will, the extent of your assets, the identities of the beneficiaries, and the implications of your decisions.

Age Requirement

Generally, you must be at least 18 years old to make a will in Ontario. However, there are exceptions for minors who are married, considering marriage, in active military service, or who are sailors at sea or during a voyage.

Written Format

Your will must be in writing. While electronic wills are recognized in some jurisdictions, Ontario currently requires a physical written document containing the will in order for it to be valid.

Signature and Date

The testator must sign the will at its end and date it to indicate when it was executed. If you are unable to sign, you may direct someone else to sign on your behalf in your presence.

Witnesses

Two witnesses must be present to witness your signature and sign the will themselves. Witnesses must not be beneficiaries of the will nor spouses of beneficiaries.

Holographic Wills

Ontario currently recognizes holographic wills which are entirely handwritten and signed by you without the need for witnesses.

Creating a Will – A Complete Checklist

There are three different methods for drafting a legally binding will in Ontario. Wills can be created through the use of an online will platform, a DIY will kit, or by visiting a lawyer who has experience in wills and estates. Let’s explore these options one by one:

1. Online Will Platform

An online will platform is a convenient and cost-effective way to create a will from the comfort of your home. These platforms provide templates that you can customize according to your circumstances and preferences.

Here’s how to proceed:

  • Choose a Reputable Platform: Research and select a platform that is recognized for its reliability and compliance with Ontario’s legal requirements. Some popular options include Rocket Lawyer and Willful.
  • Prepare Necessary Information: Before you begin, you will need to gather all essential information including details about your assets, liabilities (debts, loans), and the names and details of beneficiaries and any guardians for minor children.
  • Follow the Step-by-Step Process: These platforms typically guide you through the process by asking relevant questions that will help structure your will appropriately. Make sure that you answer these questions carefully in order to reflect your wishes for the allocation of assets in the will accurately.
  • Finalize and Print: Once your will is drafted, review it thoroughly. Print the final document and proceed with the legally required steps such as signing in front of witnesses.

2. DIY Will Kit

A DIY will kit is another option as it provides users with templates and guidelines that they can use to draft their will. This method is generally less costly than hiring a lawyer.

Here’s how to use a DIY will kit:

  • Purchase a Kit: Obtain a DIY will kit that is specifically designed for use in Ontario.
  • Read Instructions Carefully: These kits come with detailed instructions. Read them thoroughly to understand the process and legal requirements such as witness rules and how to handle complex assets.
  • Fill Out the Template: Complete the template carefully. Be clear and precise in your language to avoid confusion that could lead to disputes.
  • Store Safely: Once signed and witnessed, store your will in a safe place. Inform the executor about its location.

3. Visiting a Lawyer

For those who prefer a more personalized approach or have complex estate situations, it is advisable to consult with a lawyer. For this process, you will need to:

Find a Qualified Estate Lawyer: Look for a lawyer who specializes in estate planning and make sure to thoroughly look over their credentials and reviews.

  • Prepare for the Meeting: Gather all pertinent information about your assets, liabilities, family structure, and any special wishes or considerations for your estate.
  • Discuss Your Options: Use the consultation to get tailored advice that is specific to your situation. A lawyer can provide insights into complex situations like businesses, overseas assets, or family disputes. They can also help you determine how to maintain your will and assess the impact of any future plans on the distribution of your assets. 
  • Review Drafts: The lawyer will draft a will that reflects your discussions. Review these drafts to ensure that they accurately represent your wishes.
  • Sign in Accordance with Legal Requirements: The lawyer will ensure that all legal requirements, including witnesses and signatures, are correctly handled.
  • Safe Storage: Lawyers often store a copy of a signed will in a secure location. Decide whether to keep your will with your lawyer or elsewhere and inform your executor about its location.

Wrapping Up

Crafting a will in Ontario is a critical step in managing your affairs and ensuring that your wishes are respected after your passing. By carefully following the above-mentioned checklist, you can address every necessary detail, from appointing a trustworthy executor to outlining precise distributions of your property. If you’re seeking expert guidance regarding will creation, consider reaching out to Epstein and Associates. Our dedicated team of legal professionals specializes in wills and estate planning. With Epstein and Associates, you can feel confident that your legacy is in capable hands.