In Ontario, people who are 18 years of age or older, and who have the required mental capacity, are able to make a Last Will and Testament, also known simply as a Will, with respect to their estate. A person’s estate comprises of the assets that he or she has accumulated during his or her lifetime, and their Will directs how their estate will be distributed among the persons named in the Will, who are referred to as the beneficiaries. Beneficiaries may be individuals (i.e. natural persons), as well as entities such as charities, trusts and/or institutions (such as hospitals, schools, churches, etc.).
Generally, there are two types of Wills: holographic Wills and notarial Wills. Holographic Wills are handwritten by the person making the Will (also known as the Testator [for males] or Testatrix [for females]); whereas notarial Wills are typed and printed, then initialed and signed by the Testator/Testatrix. Depending on the type of Will (holographic or notarial), there are different legal requirements that need to be met in order to make the Will valid and legally binding on the Testator’s/Testatrix’s estate. For this reason, it is recommended that a Will be properly prepared and reviewed by an estates lawyer to ensure that it meets the legal requirements for a Will, and to further ensure that an individual’s estate planning intentions have been properly considered and documented.
One of the key features of a Will is that it is used to determine who will inherit from a Testator’s/Testatrix’s estate and may set out specific terms, trust provisions and age requirements which must be met before beneficiaries may receive their inheritance. A Will can also allow for contingent gifts, providing gifts for certain beneficiaries if they should be alive at the time of the Testator’s/Testatrix’s death and designating alternate beneficiaries should the first named beneficiaries not be alive at such time. Depending on the size and nature of an individual’s estate, certain estate planning measures can be considered at the time of drafting their Will(s) to save on future estate administration taxes for the Testator’s/Testatrix’s estate.
For individuals with minor children, a Will can also be used to appoint guardians (subject to the guardians’ acceptance and/or Court approval of such appointment) for the Testator’s/Testatrix’s minor children. Guardians are the individuals, or individual, who will have custody of the Testator’s/Testatrix’s minor child(ren) should neither parent be alive. As well, though not legally binding, Will can also set out a Testator’s/Testatrix’s wishes regarding their funeral and/or the burial/cremation of their body.
Along with establishing beneficiaries, a Will also appoints who will be the Testator’s/Testatrix’s executor(s) and estate trustee(s), also known simply as an executor. The executor, which may be more than one person, will be responsible for administering the Testator’s/Testatrix’s estate after their death and distributing the estate among the beneficiaries as directed in the Will. In the case of assets held in trust for beneficiaries, the executor is responsible for maintaining these assets for the benefit of such beneficiaries. Depending on the estate’s assets, the executor may have to apply to Court for a Certificate of Appointment of Estate Trustee With a Will, which certifies the Will and grants the executor the authority to administer all assets in accordance with the terms of the Will.
For the foregoing reasons, a Will is instrumental in allowing a Testator/Testatrix to control and direct how their estate will be handled following their death. At Parente, Borean LLP, we recommend that individuals periodically consider their estate planning intentions and review their Will with an estates lawyer to ensure that their Will accurately reflects such intentions. If you would like to speak with an estates lawyer, either to create a Will or to review your existing Will, please contact us at info@parenteborean.com.