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 the beneficiaries.

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 going to www.normanpickell.com/withoutwill.htm.

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 beneficiary.

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 family?

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 www.normanpickell.com.