This information has been made available as a courtesy, from Rutherford Cremation & Funeral Services and as such, is information that applies to the Province of Ontario. It is meant to inform people of information they may need in future or of which they are unaware; and to demystify issues concerning death and dying so that there is clearer understanding.
WHAT TO KNOW ABOUT WILLS
You can imagine, throughout the duration of my years in funeral service, when the inevitable question arises, and arise it must – “Does the deceased have a will?" – I always receive one of three responses: yes, no or I think so. In the world of finalizing estate affairs “yes" and “no" are fine, but “I think so" needs to become a hardened yes or no before paperwork can be done properly.
That said; a will is the singularly best thing that can be done before one dies to make estate affairs easier to deal with, easily understood for the one dealing with them, and to have your specific wishes carried out. While each province has slightly different laws that a will must follow, there are general criteria that need to be observed to make a will legal in most parts of Canada whether one is made through a lawyer or not.
If a person dies without a will (called: “intestate") your property is usually distributed to your closest relatives based upon statute (government law) and the process can be more complicated and hurtful than it need be. In addition, there are options that you may have wanted that now may no longer exist without a will – charities, friends, sometimes common-law spouses would receive nothing.
Here are the common ways to make a will in the province of Ontario:
THROUGH A LAWYER / I prefer this method simply for peace of mind and no matter how complex the estate. While a professionally prepared will is not legally mandatory, a person unfamiliar with the law could make mistakes that could cost money and/or grief afterward. This method allows for the highest level of customization and legal advice available. The cost can range depending upon how involved the estate might be. The times I have made a simple will, the cost was around $300 to $400. Well worth the peace of mind as far as I'm concerned.
WILL KIT / A cookie-cutter mostly worded-for-you type of will that has fill-in-the-blanks. This is straightforward but if there are things which are to be added on later (an addendum), or things to be changed, a new will kit would probably need to be purchased. Likewise, if the estate affairs after you die are going to be a little complex, I would shy away from the kit option.
HOLOGRAPHIC WILL / These types of wills are the most misunderstood. I've seen them highlighted in the movies as a plot element, a twist in a suspense film. A holographic will is a fully handwritten and signed will created without any technology like a computer or phone. No digital! There is quite a bit of room for error and dispute unless you have a legal background. This method can be used if you are not able to have your will witnessed. Indeed, a holographic will is not to be witnessed, because as soon as there is someone else's signature on it, it is invalid. They are hard to update because they will need to be completely re-written when a change is made. They will also need to be accepted by probate courts to determine if they are valid. Provinces like BC or PEI do not recognize them or parts of them that regard specific things like property.
Now that we've covered types of wills, here are the elements that make a will legal in Ontario:
-You must be of “sound mind" to create a binding will and you must be over the age of majority.
- The will must be made (holographic) and/or specified (lawyer/will kit) by you, the testator.
- It is unlawful to make a will for someone else.
- The will must be dated and signed by you and two valid witnesses on the last page who are together with you in the room, (except a holographic will which is signed by you only). -
- A valid witness is not someone who is to benefit in any way when the will is carried out.
- The will must be signed and witnessed in ink and stored as a copy. It is the original will that is valid, not the copies.
Regarding funeral services, a will is always discussed prior to making arrangements. The funeral home needs to know firstly if there is one, and secondly, who the executor(s) are. All executors must be listed on the Proof of Death certificates that are issued through the funeral home. That means we need to know the wording on the first page of the will. There may be several executors indicated (which can potentially be a problem for those taking care of things). Regarding the wording that states a particular person as the executor and “if they are unwilling or unable" then it's another person – it's the actual executor(s) information that the funeral home needs and not the by-standers.
This information has been made available as a courtesy, from Rutherford Cremation & Funeral Services and as such, is information that applies to the Province of Ontario. It is meant to inform people of information they may need in future or of which they are unaware; and to demystify issues concerning death and dying so that there is clearer understanding.
