By: Rajesh K. Sharma, Advocate (LinkedIn)

A will is a legal document that outlines how a person’s estate will be managed and distributed after death. It allows the individual, known as the testator, to specify their wishes regarding the distribution of his assets, appoint an executor to administer the estate, and designate guardians for any minor children. Without a will, the estate is distributed according to Ontario's intestacy laws, which may not align with the testator's wishes.

Individuals may create multiple wills to handle different types of assets, such as corporate and personal assets, to avoid probate fees on certain parts of the estate. Wills can be updated or revoked as circumstances change, ensuring the testator's wishes are always reflected. Having a well-drafted will ensures a smooth transition of assets and minimizes potential disputes among beneficiaries.

Lawyer Responsibilities

When drafting or preparing a will, lawyers in Ontario have several important responsibilities to ensure the document is valid, reflects the testator's wishes, and complies with legal requirements. Key responsibilities include:

Understanding the Testator's Intentions and Communication: Lawyers must thoroughly understand the testator's wishes regarding the distribution of their estate, appointment of executors, guardians for minors, and any special bequests or instructions. The lawyer must ultimately meet with the testator in person prior to the will’s being signed.

Providing Legal Advice: Lawyers advise clients on the legal implications of their decisions, including tax considerations, potential challenges, and the role of executors. They ensure that the testator understands the consequences of their instructions and suggest ways to avoid disputes or complications.

Ensuring Capacity and Voluntariness: Lawyers must assess whether the testator has the mental capacity to make a will and is acting of their own free will, without undue influence. This is crucial to ensure the will’s validity.

Drafting a Legally Compliant Will: The lawyer ensures the will meets all formal requirements under Ontario law, such as being in writing, properly signed by the testator, and witnessed by two independent witnesses. They also ensure the language is clear and unambiguous.

Managing Complexities: In cases involving complex estates (e.g., multiple properties, business interests, or blended families), lawyers may advise on the use of trusts, multiple wills, or specific bequests to handle unique circumstances.

Reviewing and Updating: Lawyers may periodically review the will with the client to ensure it remains current and reflects any changes in the client’s circumstances, such as marriage, divorce, or the birth of children.

Statutory Constraints on the Will

In Ontario, wills are subject to certain statutory constraints designed to ensure fairness, legal compliance, and protection of beneficiaries' rights. The Dependent Support Claim and the Family Law Act provide statutory protection to dependents and surviving spouses, ensuring that a will cannot completely disregard the needs of those who were financially dependent on the deceased. Some of the key statutory constraints include:

1. Dependent Support Claim (Succession Law Reform Act - SLRA)

Under the Succession Law Reform Act (SLRA) in Ontario, a dependent can make a claim for financial support from the estate if the deceased did not provide adequate support in the will. Dependents include spouses (married or common-law), children (including adult children), grandchildren, parents, and any other individuals whom the deceased was supporting or had a legal obligation to support before their death.

Adequate Provision: The testator must make “adequate provision” for dependents. If they fail to do so, the dependent can apply to the court for financial support.

Court’s Consideration: When determining support, the court considers factors such as the dependent’s financial needs, the size of the estate, the dependent’s relationship with the deceased, and the deceased’s obligations at the time of death.

Override of Will: A dependent support claim can override the deceased’s testamentary wishes, leading to a redistribution of assets to ensure dependents are properly cared for. This ensures that no dependent is left without necessary resources, even if they are excluded from the will.

2. Family Law Act (FLA) - Equalization of Net Family Property

The Family Law Act (FLA) provides significant rights to married spouses after the death of one spouse. Specifically, under the FLA, the surviving spouse can choose to either:

Take under the will, receiving whatever is left to them in the deceased’s estate, or

Elect for an equalization payment, which is similar to what they would be entitled to if the marriage had ended by divorce rather than death.

Equalization Payment: This entitles the surviving spouse to an equal division of the net family property, which is the difference between the increase in the value of each spouse’s property from the date of marriage to the date of death. If the deceased spouse’s estate is less than the surviving spouse’s equalization entitlement, the estate must make up the difference.

Election Process: The spouse must file an election with the court within 6 months of the deceased’s death. Choosing the equalization payment may result in them forfeiting what was left to them under the will.

Impact on Estate Distribution: An election under the FLA can significantly alter the distribution of the estate, especially if the equalization claim is larger than what was provided under the will. This statutory right ensures that the surviving spouse is financially protected.

Will Drafting

When drafting a will, the lawyer begins by gathering all relevant information about the client’s objectives and instructions. During the drafting stage, it is important to include certain administrative provisions that facilitate the proper administration of the estate, such as powers to sell assets, pay debts, manage minors’ shares, and make tax elections. One key provision is the authority for estate trustees to purchase estate assets for personal benefit, provided beneficiaries or the court approve.

Additionally, the lawyer may incorporate a memorandum by reference to detail specific personal effects. If the memorandum is intended to be legally binding, it must be prepared before the will is signed.

Lawyers must also avoid inadvertent distributions and address contingencies like beneficiaries predeceasing the testator (lapse). The anti-lapse provision in Ontario allows gifts to pass to a beneficiary’s descendants in certain cases unless the will specifies otherwise.

In drafting wills for couples or addressing complex family situations, the lawyer must account for simultaneous deaths, ultimate distribution scenarios, and provide for trusts when necessary. Consideration must also be given to investment authority, the rule against perpetuities, and trust accumulation limits to ensure proper management of trust assets.

Lawyers must navigate these complexities carefully to ensure the will accurately reflects the client’s intentions and complies with Ontario’s legal requirements.

Execution of will/ Signing of Will

In Ontario, the formal signing of a will requires the testator to sign at the physical end of the document in the presence of two witnesses, who must also sign. Witnesses should not be beneficiaries or married to beneficiaries, as this could void any bequest made to them unless proven that no undue influence was exerted. To avoid future complications, obtaining an affidavit of execution from one of the witnesses is recommended.

Due to the COVID-19 pandemic, alternative methods for witnessing wills were introduced, including remote witnessing via technology and the use of counterparts (separate but identical copies). The use of counterparts has become a permanent option, provided one witness is a licensee under the Law Society Act.

International wills, recognized under a global convention, offer added flexibility for clients with assets in foreign jurisdictions. Holograph wills, entirely handwritten by the testator, are also valid in Ontario and do not require witnesses, though they are generally used in emergencies. However, any handwritten portions of DIY will kits must independently reflect testamentary intent.

As of January 2022, Ontario’s courts can validate improperly executed wills if they clearly express the testator's intentions, introducing a "substantial compliance" standard to ensure a testator’s wishes are upheld despite formalities not being fully met

Will Storage

When a client keeps the original will, they should be warned of the potential issue that if the original will cannot be found at the time of death, the law may presume that the client destroyed it, leading to an assumption of intestacy. To mitigate this risk, lawyers should keep copies of the will, such as “true” or notarial copies, in their files.

If the client requests the lawyer to retain the original will, the lawyer should ensure they have appropriate secure storage, like a safe deposit box or a fire- and water-resistant filing cabinet. Additionally, the lawyer should obtain a written directive from the client allowing the lawyer to deposit the will with the local Superior Court of Justice registrar if contact with the client is lost, or if the lawyer intends to retire. Rule 74.02 of the Ontario Rules of Civil Procedure allows for such deposit by a lawyer who has custody of the will, ensuring its safekeeping in the absence of the lawyer or client

Important Points/ Key Takeaways

1. A lawyer may be held liable to the intended beneficiary or beneficiaries if an act or omission in executing the client's instructions undermines the client’s testamentary intentions.
2. Ensuring the client’s capacity and freedom from influence is crucial.
3. The lawyer must personally meet with the client before the will is signed to ensure the validity of the instructions and the testator's intentions.
4. Comprehensive information gathering and clear client instructions are essential.
5. If the lawyer is not fluent in the testator’s first language, it is crucial to strongly consider having an independent interpreter present during all meetings with the testator to ensure clear communication and understanding.
6. The testator should be at least 18 years of age unless an exception applies, such as being married, a member of the armed forces, or a mariner at sea.
7. A surviving spouse has the right to choose between accepting the entitlement under the will or claiming an equalization payment under the Family Law Act, which represents a sharing of the marital property.
8. Planning for taxes, statutory claims, and potential international issues is necessary.
9. The lawyer should instruct the client to prepare the memorandum before the will is signed and advise the client that any changes made to the memorandum after the will's signing have no legal effect. No witnessing or other formalities are required for a memorandum.
10. When a beneficiary predeceases the testator, the gift typically lapses. However, if the predeceased beneficiary is a child, grandchild, or sibling of the testator and leaves a spouse or issue, the anti-lapse rule applies.
11. Proper drafting, signing, and storage practices ensure the will’s validity and effectiveness.
12. A formal will must be signed at its physical end by the testator and at least two witnesses.
13. The testator must sign or acknowledge their signature before at least two witnesses present at the same time, although the witnesses need only sign in the testator's presence
14. Neither witness should be a beneficiary or the spouse of a beneficiary to avoid the risk of voiding any gifts to that beneficiary, unless it can be proven that no undue influence was exerted.
15. An affidavit of execution from a witness should be obtained at the time of signing to prevent future probate issues.
16. The lawyer should ensure appropriate safe-keeping facilities, such as renting a safe deposit box at a bank or retaining the document in a water-resistant and fire-resistant filing cabinet on site.