Have you been avoiding making a Will? Here’s why you need to get it done
By Timothy Matthews | July 17, 2020 (Updated January 24, 2022)
Everyone needs a Will—but lots of people don’t have one. That adds up to headaches for your loved ones, as dying without a Will leads to extra time and costs to get your affairs in order. Often, it’s simple procrastination, and thinking that getting a Will done will be expensive, time-consuming or complicated, that makes you put it off. Other times it’s denial, because making a Will means thinking about your own death. Or you may think you don’t have enough of an estate to bother with a Will. The reality is that adults do need a Will, and in most cases talking to your lawyer about it is a straightforward task.
What happens if I die without a Will?
Dying without a Will (also known as “intestate”) means that you don’t have a say in who receives your estate’s assets. Instead, your assets would be distributed among your spouse or relatives in accordance with the laws of Ontario. Even the order of that distribution is determined for you: your children would receive preference over your siblings, for example. As well, a member of your family (or other individual) would have to apply to be an executor, who is someone who manages your estate after your death. Dying without a Will also means that you don’t get to express your wishes about who would become the temporary guardian of any dependent children, or leave a bequest to a charitable organization that means a lot to you. The whole process of settling your estate without a Will is longer and therefore more expensive, and creates uncertainty.
Surprising things that make your Will invalid
There are a number of ways for a Will to be invalid (in other words, there’s a legal problem with the Will and it will not be used to distribute your estate). If you die with a Will that is later found to be invalid, your estate will generally be treated as if you died without a Will.
Previously under section 15 the Succession Law Reform Act, if you got married but kept the Will you had before your marriage, then your marriage would revoke your Will (i.e., make it void), unless the Will was specifically noted as being made in contemplation of that marriage. On January 1, 2022, changes to the Succession Law Reform Act became effective, which repealed section 15. This means that if you marry after January 1, 2022, your Will is not revoked (made void) by your marriage. In other words, if you marry and want part or all of your estate to go to your new spouse, you now need an updated Will.
If you are separated but not divorced, and you die, then the law will generally treat your separated spouse as if you are still married, in terms of distribution of assets, unless some specific conditions are met. If you are divorced and your Will still names your former spouse as an executor or as a recipient of assets, those parts of the Will are considered void.
While provisions in the Succession Law Reform Act coming into force January 1, 2022 restrict claims by separated spouses under certain specific conditions, it remains as important as ever to ensure that you prepare a new Will following a separation to ensure that your wishes are reflected.
Bottom line: your Will needs to reflect your current marital status and your current wishes.
If you’re writing a Will on your own, using a “DIY” Will kit or something similar, you may end up making simple errors in the drafting or execution that make the whole Will invalid. Did you know, for example, that a beneficiary or the spouse of a beneficiary can’t be a witness?
How do I get a Will?
Henderson Family Law regularly prepares Wills and Powers of Attorneys for clients and can assist you in the proper preparation and execution of your Will. The majority of the Wills we handle are straightforward and are prepared for a flat fee. Having a properly drafted and executed Will means both peace of mind, and reducing the risk of expensive, stressful outcomes for your family. Give us a call and take “make a Will” off your to-do list.
This content is provided as a general informational source by Henderson Family Law, and does not constitute legal advice or opinion, or establish a lawyer-client relationship. Every situation is complex and fact-specific, and appropriate advice will vary accordingly. Do not rely on this information for legal decision-making under any circumstances. Please consult with us and obtain proper advice and strategy concerning the specifics of your particular situation.