Wills: The Basics by Norman Pickell
Do you have a will? Statistics show that about one-third of adult
Canadians do not have a will at all. Why is that?
Some people are superstitious. They think that if they make a will
today, they will die tomorrow. But those same people have insurance on
their car and house; yet they have not been in a car accident and their
house has not burned down.
Some don't think they need a will because everything is owned jointly
with their spouse. But what happens if your spouse dies before you do,
either from natural causes or in a car accident which eventually takes
your life too? What if you do not have the necessary mental capacity to
make a will after your spouse dies?
Is it the cost of the will that is stopping you from having one?
Compared to other things that you spend money on and the cost of what
happens if you die without a will, wills are very inexpensive.
Some people are not sure who to name as guardian of their children.
Others are having difficulty deciding how to divide their estate among
Let us take a moment to talk about what can happen if you die in Ontario
without a will.
Without a will, you will not be able to decide who your estate trustee
(also known as "executor") will be and you won't be able to choose who
receives your estate. If you have at least one child, your spouse will
not necessarily receive all of your assets.
If you have a common law spouse or a same-sex partner, your spouse or
partner will not automatically receive any of your estate if you die
without a will. In order to have a chance to receive any of your estate,
your common law spouse or partner will have to commence a lawsuit. Court
actions are usually expensive.
Without a will, you will not be able to designate your choice of
guardian to look after your children who are under 18 years of age. Your
children will be able to receive all of their inheritance at age 18,
even if they are not able to wisely handle the money at that age.
Your grandchildren may not receive any part of your estate. You will not
be able to properly provide for any children you have from a previous
marriage or leave part of your estate to any of your step-children
unless you have a will.
You will not be able to leave anything to a friend or a charity.
If you don't have a will, it will be more expensive and likely take
longer to administer your estate. No one will have the legal authority
to take control of your assets and properly secure them or act for your
estate until the Court appoints someone.
You can read more examples of what happens if you die without a will by
Suffice it to say that without a will, you will lose control over what
happens to your assets when you die. You will also cause your estate to
incur costs which are far greater than the cost of making a will.
A will is a written statement that provides for the disposition of your
assets when you die. Each person must have their own will. A husband and
wife cannot make a joint will together.
In Ontario there are certain formalities that must be followed in order
for the document to be considered a valid will. It must be signed by you
in the presence of two witnesses. Each witness must be at least 18 years
old and cannot be a beneficiary named in the will.
Some people make a holograph will, which is a document that is
completely handwritten and signed by the person making the will. But you
need to be careful. For example, a typewritten document which you sign
without two witnesses is not valid because it is not fully handwritten -
it is typed.
When preparing a will, many issues need to be considered, including what
assets become part of your estate, what tasks executors - now known as
"estate trustees" - perform, how to appoint guardians for your dependant
children and how to name beneficiaries. You may also want to consider at
what age the beneficiaries receive their share of your estate. If you
have a mentally or physically challenged beneficiary, you should
consider setting up what is known as a "Henson Trust" for that
What happens if the person you name as beneficiary dies before you do?
Have you made provision for that possibility?
You want to make sure that the wording of the will is correct. A few
years ago I had a case where the will - which was prepared by another
lawyer - said that the parent's house could not be sold "as long as son
John and daughter Susan are living in the house." John had moved out.
Despite the objections of some family members, I was able to persuade
the judge that what the parent really meant to say was that the house
could not be sold "as long as son John or daughter Susan is living in
the house." Who would have thought that the tiny words "and" and "or"
could cause so much grief for a family.
Many of us have heard the phrase "This is the last will of so and so."
For some people having only one will is not sufficient. Depending upon
the types of assets that you have, you might be better off having two
wills prepared at the same time - one for assets that require probate
and one for assets that don't require probate.
It is a good idea to have a lawyer prepare your will so that you can
make sure that the legal formalities are followed and that your assets
will be distributed the way you want them to be. You will have peace of
mind knowing that your affairs are in order.
You say you have a will. Is it up to date?
You should look at your will at least once every five years to see if it
is still up to date. Have you had children or grandchildren since you
last signed your will? Have you married since you signed your will? With
some exceptions, a marriage usually revokes a will. Has one or more of
your beneficiaries died? Has there been a marriage separation in the
Leaving an out of date will or no will at all when you die can be one of
the biggest causes of family disharmony. Is that the legacy that you
want to leave your family?
Norman Pickell is a mediator and lawyer based in Goderich, Ontario.
For more information about wills, please visit his web site at