Creating a Will is one of the most important steps you can take to ensure that your assets are distributed according to your wishes. In Ontario, a valid Will can help avoid confusion, conflict, and costly legal battles after your passing.
✅ 1. Choose the Right Type of Will
In Ontario, there are three primary types of Wills:
- Holograph Will – Entirely handwritten and signed by you. No witnesses required, but prone to legal challenges. This should only be used when there is a great deal of urgency.
- Formal Will – Typed or printed, signed in the presence of two witnesses who are not beneficiaries.
- Lawyer-Prepared Will – Professionally drafted to ensure compliance with legal requirements and tailored to complex situations which may be present.
For most people, a lawyer-drafted Will offers the most clarity and legal protection.
✅ 2. Confirm You Have Legal Capacity
To make a valid Will, you must:
- Be at least 18 years of age (exceptions exist for military members or those who are married)
- Have mental capacity (understand the nature and effect of the Will, the extent of your property, and the people who would ordinarily benefit from your estate)
✅ 3. Appoint the Right People
Executor: Choose someone you trust to carry out your wishes. You may also appoint a backup (alternate) executor. This is particular important because a Will may last several decades before it is updated, or may not be updated at all due to the loss of mental capacity.
Guardian for Minor Children: If you have children under 18, name a guardian to care and make decisions for them.
Trustee: If your Will includes a trust (especially for minors or dependents), appoint a trustee to manage those particular assets.
✅ 4. List Your Assets
Creating an inventory helps ensure nothing is forgotten or omitted:
- Real estate (homes, cottages, investment properties)
- Bank accounts, RRSPs, RRIF’s RESP’s, RHOSP’s pensions, TFSAs
- Stocks, bonds, and investments
- Personal property (vehicles, jewelry, artwork, collectibles)
- Business interests
- Digital assets (email, cloud storage, cryptocurrency, etc.)
✅ 5. Name Your Beneficiaries
Be specific to avoid disputes:
- Primary beneficiaries (e.g., spouse, children, siblings)
- Alternate beneficiaries in case someone passes away before you
- Specific bequests (e.g., “$10,000 to my niece” or “my watch to my brother”)
- Identify beneficiaries by name, and remember that there is no such thing legally as an “in law”
- Residual estate beneficiary (who receives the rest)
✅ 6. Plan for Special Circumstances
Address situations that may require extra planning:
- Children with disabilities (consider a Henson Trust)
- Blended families (stepchildren, multiple marriages, and priorities)
- Dependents not related by blood or marriage
- Estranged relatives should be excluded from participation
- Pets (name a caregiver and possibly set aside funds)
✅ 7. Plan for Taxes and Debts
Your estate must settle all debts and taxes before distributing assets:
- Be aware of Ontario’s Estate Administration Tax (probate fees)
- Plan for final income taxes
- Consider charitable donations for potential tax relief
✅ 8. Follow the Proper Signing Formalities
Execution errors can invalidate your Will:
- Sign your Will in the presence of two witnesses
- Witnesses must be independent (not beneficiaries or their spouses)
- Witnesses must sign in your presence and in the presence of each other
- Date the Will
✅ 9. Store Your Will Safely
- Keep the original in a secure, accessible location
- Notify your executor where the Will is kept so that they will have access
- Avoid hiding it in a place that’s hard to find (e.g., safety deposit boxes with no access plan) UNLESS this is well set out and documented
✅ 10. Review and Update Regularly
Your Will should evolve with your life:
- Marriage or divorce
- Birth or death of a beneficiary
- Major changes in assets
- Every 3 to 5 years, even if no major changes occur
Always revoke and replace outdated Wills to avoid confusion.
Get rid of older Wills, since your Excecutor might that one and believe that it is the latest
✅ Don’t Forget These Essential Documents
While drafting a Will, consider completing the following:
- Power of Attorney for Property – Appoints someone to manage your finances if you’re incapacitated
- Power of Attorney for Personal Care – Appoints someone to make health care decisions for you
- Letter for Assitance – Informal guidance to executors about your preferences including funeral arrangements (not legally binding)
Brian Madigan LL.B., Broker
www.OntarioRealEstateSource.com