Canada: Your Will: The Foundation of Your Estate Plan

Last Updated: January 13 2011

Article by Heather Hisey and David Steele

What Is a Will?

A will is a document that contains a declaration by a person (called a testator) describing how his or her property should be dealt with on death. The will may be revised at any point during the testator's lifetime, as long as he or she has the necessary mental capacity to do so.

Who Should Have a Will?

If you are over the age of majority (18 in Ontario), you should have a will. A will ensures that the persons whom you wish to benefit actually do benefit to the extent and in the manner that you wish. It also enables you to select the person you wish to administer your estate.

What Happens if You Die Without a Will?

Who will administer the estate? The court will appoint someone to administer your estate, giving priority to a spouse (legal or common law), adult children and other next-of-kin, in that order.

How will the assets be distributed? In Ontario, if you do not leave a will, the Succession Law Reform Act specifies who will receive your property and in what proportion. This law is entirely inflexible and makes no allowances for what your wishes may have been. Furthermore, the scheme of distribution is restricted to spouses, offspring and other blood relatives. There is no provision, for example, for any distribution of assets to friends, in-laws or charities. If a person dies without a valid will, without a surviving spouse and without offspring or other blood relatives, the person's assets become government property.

If the estate is worth more than $200,000 and there is a surviving spouse and at least one child, the entire estate does not go to the spouse. Rather, it is divided between the spouse and the child in proportions determined by provincial laws. This can result in capital gains taxes being payable on death. It can also result in the spouse having to live on less than what the decedent may have wished. Both situations can be avoided with a proper will.

When will minors become entitled? If there is no will, the portion of the estate left to a minor must be paid into court and can be used for the child's benefit only if an application is made to the Children's Lawyer (formerly the Official Guardian). The child will be entitled to his or her share on reaching 18 years of age. In a will, trusts can be established to provide for the ongoing use of funds and to defer the final distribution of funds until the beneficiary reaches the age of majority.

Are there other problems if you don't have a will? Common law relationships are not recognized under the Ontario wills legislation, so a common law spouse has no entitlement to the estate (other than the right, as a dependant, to make a claim for support). Further, if the spouse of the decedent was separated but not divorced, he or she is entitled to the spouse's share as determined by provincial law.

Who will have custody of minor children? If there is no will, no one will have the immediate authority to take care of minor children. Someone will have to make an application to the court to obtain legal custody.

Are There Any Assets That a Will Does Not Cover? Proceeds of life insurance and RRSPs and similar plans that are payable to a named beneficiary are not covered by your will. Similarly, assets held jointly with right of survivorship (generally, joint bank accounts and real estate held in joint tenancy) will pass automatically to the surviving owner and are not governed by the terms of a will. For tax reasons, it is particularly important to designate your spouse or dependent children as beneficiaries of RRSP proceeds. Otherwise, the entire amount of the RRSP will be included in your income in the year of your death.

There are no such negative tax consequences associated with insurance proceeds, but naming a beneficiary ensures that the named person receives the proceeds very quickly after death. On the other hand, naming minors as beneficiaries entitles them to receive the proceeds at the age of 18, which may not be advisable. In this case, you could name your estate as beneficiary of the insurance proceeds and establish trusts under your will for any minor beneficiaries, or you could establish a separate insurance trust in your will. The latter is generally preferable, because naming the estate as beneficiary will result in probate taxes being payable on the amount of the insurance proceeds.

What Should a Will Cover?

Estate trustees. An estate trustee (formerly called an executor) is a personal representative chosen by you and specified in your will to carry out the terms of the will. The role of the estate trustee is onerous, and the choice of one or more estate trustees requires careful consideration of their suitability. If your original estate trustee becomes unable to carry out his or her duties, a well-drawn will typically provides for the appointment of replacement estate trustees to ensure that there is always someone of your choosing available to act.

Disposition of assets. A will permits you to determine who should benefit from your estate. You may choose to leave particular articles or property to a named individual or charity (e.g., "My 1965 Ford Mustang to my brother, John Smith, if he survives me"), or you may provide for a gift of a sum of money (e.g., "The sum of $1,000 to the Toronto Hospital Foundation").

In most cases, individuals wish to leave most, if not all, of their estate to their surviving spouse in the first instance, and then provide for their children in the event that there is no surviving spouse. This will not necessarily happen if you die without a will. Furthermore, leaving the estate to a spouse (or to a trust for the sole benefit of the spouse) avoids the capital gains tax that would otherwise arise on the death of the first spouse to die.

Of particular significance to parents of minor children is that a will may also provide when or at what age a beneficiary is to receive his or her entitlement under the will. If the will does not make this express provision, a minor beneficiary is entitled to receive property left to him or her on reaching the age of majority. In a will, it is possible to provide that a minor beneficiary's share be held in trust until reaching a specified age. The terms of such a trust can be tailored to your intentions. For example, a trust may provide for periodic distributions of income to the beneficiary, or leave the timing and amount of the payments to the discretion of the estate trustee. In addition, the trust may provide for the entire trust property to be distributed to the beneficiary when he or she reaches a stated age (e.g., 25 years); alternatively, it may provide for a distribution of the capital of the trust at stated intervals and in stated proportions (e.g., one-half at age 25 and the balance at age 30).

Trusts are extremely flexible arrangements, and their use in wills is not confined to making provision for minor children. Trusts can also enable you to provide for a disabled beneficiary who may not be able to handle his or her own financial affairs.

A will may also provide for a substitute beneficiary in the event that the first named beneficiary dies before you do.

Custody of Children and Guardianship of Children's Property. A will may include a provision appointing a person or persons to take custody of your minor children and become guardians of their property. In Ontario, such an appointment is effective for a period of 90 days; if the named custodian/guardian wishes to continue acting after this time, he or she must apply to the court to have the appointment confirmed.

Are There Any Limitations on What You Can Do in Your Will?

There are several statutes and legal rules that may have affect your ability to dispose of your property as you choose.

Family Law Act. This provincial statute governs, among other matters, the division of property of spouses in the event of marriage breakdown or death. The Act significantly affects the freedom of Ontario spouses to dispose of property on death. The property disposal provisions of the Act apply only to legally married spouses, whereas the support obligations of the Act extend to common law spouses as well.

Under the Family Law Act, the value of all "net family property" accumulated by spouses during the marriage is, generally, shared equally when the marriage ends, whether the end is due to separation, divorce or death. "Property" is very broadly defined under the Act and includes business and partnership interests, investments and pensions. When a spouse dies, the surviving spouse must elect to take either the entitlement under the Family Law Act or the gifts specified in the deceased spouse's will.

If the surviving spouse elects to take his or her entitlement under the Act, any gifts specified in the will are revoked: the will is interpreted as if the surviving spouse had predeceased the testator unless the will expressly provides to the contrary. The surviving spouse's entitlement under the Act is typically equal to one-half the difference between the deceased spouse's net family property and the surviving spouse's net family property. A surviving spouse may elect in favour of the Family Law Act only if his or her net family property is less than that of the deceased spouse.

The Act is of concern to you only if you do not intend to leave a significant portion of your estate to your spouse, as is frequently the case if one or both spouses have children from a previous marriage.

The Family Law Act also permits a couple to enter into a domestic agreement (often called a "marriage contract"), which can have the effect of excluding a spouse's entitlement to make a net family property equalization claim and which may also cover issues such as support.

Succession Law Reform Act. This provincial statute contains provisions that entitle certain persons to make a claim for support against an estate if they can establish that they were dependent on you at the time of your death and that you have not made adequate provision for their support under your will. Those who may qualify as a "dependants" include a spouse (legal or common law), a parent, children, brothers or sisters.

A will cannot include special provisions that will prevent a support claim from being made against your estate by a party claiming to be a dependant. To reduce the likelihood of such a claim, however, you may determine that it is appropriate to make some provision for the dependant, either in your will or by some other means (e.g., life insurance).

Shareholders' Agreements and Other Contracts. A testator may be a party to a shareholders' agreement or other contract that may limit his or her capacity to deal with a particular asset. It is important to give the lawyer preparing your will the opportunity to review these agreements.

How Often Should I Review My Will?

Once a will is complete, it should not be put away and forgotten. Whenever there is a substantial change in your circumstances (e.g., an increase or reduction in assets or the death of an estate trustee or a beneficiary), you should review your will and possibly update it. As well, if you marry, your existing will is revoked. In any event, you should make a point of reviewing your will every year or two to ensure that it continues to meet your needs and wishes.

Do I Need a Power of Attorney?

Powers of attorney are an important component of any personal and financial plan. In Ontario, there are two types of powers of attorney: (i) continuing powers of attorney for property, and (ii) powers of attorney for personal care.

A continuing power of attorney for property allows an individual (called the donor) to appoint another individual (called the attorney) to make decisions about the donor's financial affairs. This type of power of attorney is "continuing" because it continues to be effective even if the donor loses mental capacity at some point.

A power of attorney for personal care allows the donor to appoint an attorney to make certain decisions about the donor's healthcare, nutrition, shelter, clothing, hygiene or safety if at some point in the future the donor is incapable of making the relevant decisions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.