Parents with minor children have specific estate planning
concerns. One such concern is how to provide financially for the
children if one or both parents die. Another concern is who will
care for and raise the children should both parents die at the same
In Ontario, the Children's Law Reform Act (the
"CLRA") deals with testamentary custody and guardianship
of minor children.1
Parents (or any other person entitled to custody of a child) may
appoint by will one or more persons to have custody of the child
immediately following their death.2 The chosen
individual(s) must consent to the appointment. Such appointment(s)
by will, or testamentary custody, is only effective for a maximum
of 90 days after the appointment becomes effective (i.e. 90 days
from date of death).
The ultimate determination of custody is reserved for the Court,
on application by the person(s) appointed in the will. Other
individuals (usually family members) may commence their own
(competing) applications for permanent custody. A testator's
wishes will provide guidance to the Court in making a
determination. However, it is the best interests of the child that
will govern, and the CLRA provides that a child's views and
preferences shall be taken into consideration to the extent that a
child is able to express them.
It is important for parents and other persons with custody of
minor children to consider choosing a person(s) who shares the same
values and parenting style. Once the choice is made, parents should
discuss the matter with the chosen individual(s) to ensure that the
individual will accept the important responsibility of raising
their children, and then tell other family members of their choice.
Changes to the personal situation of the parents or the chosen
individual may require a re-evaluation to ensure the right person
is appointed with testamentary custody of minor children.
Guardianship of a Minor Child's Property
The CLRA distinguishes between a person with custody of a child,
and a guardian of the property of the child. Parents, or other
persons with custody of a child, do not have the right or authority
to deal with a child's property. That is, a parent who has
custody of a minor child is not automatically the "guardian of
property" of his or her minor child's property.
A parent may appoint an individual with testamentary custody of
their minor child, and provide that their named estate trustee
manage the child's assets until the child reaches 18 (or some
In cases where parents with minor children die without a will,
or leave a will that does not provide for the management of
property inherited by their minor children, the CLRA provides for
the appointment of a guardian of property on application by a
surviving parent or by any other person (family members or
A surviving parents has priority to be appointed as guardian of
a child's property, and more than one guardian of property may
be appointed. Guardianship applications must be made on notice to
the Children's Lawyer. The Office of the Children's Lawyer
is a law office in the Ministry of the Attorney General. The
Children's Lawyer represents the interests of children before
the court in custody and access matters, child welfare proceedings,
and civil litigation and estate matters.
Guardianship applications must also be supported by affidavit
evidence which addresses, among other things, the ability of the
applicant to manage the property of the child (i.e. qualifications
and experience of the applicant), and the views and preferences of
the child, where such can be reasonably ascertained. A management
plan for the child's property must also be included in the
application. The proposed management plan should address, at
minimum, where the child will live, the child's share of living
expenses, discretionary expenses for the child (e.g. music lessons,
sports fees and equipment, camps), the investment plan for any
liquid assets, and the financial education of the minor child. The
latter is important as a guardian of property is required to
transfer all property to the child at age of majority, which is 18
 See Sections 61 through 75 of the Children's Law
 If only one parent (or other person) has custody,
there will be no need for matching provisions
 See sections 47 through 58 of the CLRA.
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.
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On March 31, 2014, BC's new Wills, Estates and Succession Act1 ("WESA") will come into force. WESA introduces new protections for beneficiaries of estates that are in danger of being disputed or deemed ineffective by a court.
It is not uncommon for parents to provide monetary gifts to their adult children. Parents may wish to help their child with a down payment on a property, or help pay out their child's existing mortgage.
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