As a litigator, clients come to me when they are in a fight. Often, they are engaged in a costly years-long battle to right a wrong or get a just result on behalf of their deceased loved one. And, almost as often, such disputes could have been avoided years earlier if the testator (like you) had only received the correct legal advice. There are certain milestones in life at which you should make or update your will. From my experience, here are the top 5 life events that can make (or break) your estate:
If you live with your partner, you might both assume that since you are “common law” spouses, you have the same rights to each other's property as legal spouses. For the most part, this is true. However, if you or your partner die without a will (or “intestate”) in Ontario, the surviving partner does not have an automatic legal right to share in any portion of the deceased partner's estate. Instead, the surviving partner has to bring formal legal proceedings against the deceased's estate by initiating a claim for dependants' support under Part V of the Succession Law Reform Act. 1 This process is long, expensive, and is often adversarial. If you are cohabiting with your partner, you should both make or update your will to make provisions for one another, or explicitly exclude one another from any share of your estate.
Except in a few limited circumstances, marriage automatically renders an existing will invalid in Ontario. 2 If you do not make a new will after getting married, you will be considered to have died intestate, and your estate will be distributed in accordance with the intestacy laws of Ontario. 3 As a result, there will be no provision for any dependents you may be supporting or for anyone other than your spouse and/or children for whom you wish to provide. Furthermore, you will lose any opportunity for tax planning or asset maximization. In cases of subsequent marriages, we often see spouses who agree not to make any claims against one other's estate in the event of death, and clients who feel reassured by the fact that they executed a will 30 years prior that names only their children as beneficiaries. They do not understand that without a new will after marriage, the subsequent spouse will be legally entitled to a preferential share of the deceased's estate on death, despite any previous agreement to give up all claims to the deceased's estate. 4 If you are married or contemplating marriage, you should speak with a competent estates lawyer to update your will.
Having children is one life event that frequently prompts people to make or update their will, and for good reason. Ontario is the only jurisdiction in Canada that allows a will to appoint someone to have legal custody of your child or children. 5 This appointment is called a “testamentary guardianship appointment.” It is effective for 90 days following death, after which the proposed guardians must apply to the Court for a longer-term custody order. Such an appointment will ensure that your children will be looked in the critical period immediately following a parent's death.
4. Business Interests
In Ontario, Estate Administration Tax (“EAT”) is payable at a rate of 1.5% on the entire value of an estate. Dual wills or multiple wills can help mitigate this tax burden. An experienced estates lawyer can prepare a “primary will” for assets requiring the estate trustee to obtain a Certificate of Appointment of Estate Trustee or “probate”, such as bank accounts or real property, and a “secondary will” for assets that do not require probate, such as shares in a private company or private loans. On death, the estate trustee will only probate the primary will, which can result in significant tax savings in respect of the secondary estate. Depending on the extent of your business ownership or corporate interests, there are a number of other mechanisms that can be incorporated into your estate planning, including an estate freeze to defer tax on future growth, buy-sell arrangements with co-owners of the business, emergency plans in case you become incapacitated, etc. Dual estate planning is a worthwhile investment, but it can be complicated and requires the advice of an experienced estate planner.
A will is not automatically revoked on divorce. Instead, a will made before a divorce will be interpreted as if your ex-spouse died immediately prior to your death. The result is that any alternative arrangements or gift-over provisions you have made in the will shall apply. An example is a will made during marriage that appoints your spouse as the estate trustee and your oldest child in the alternative, and leaves the residue of your estate to your spouse, or, in the alternative, to your children equally. If you divorce, and your will is interpreted as if your ex-spouse pre-deceased you, then it will be your oldest child who is appointed your estate trustee, and the residue of your estate will be divided among your children equally; your ex-spouse can neither act as your estate trustee or receive any share of your estate as a beneficiary. Many clients who make a new will following divorce often do not consider the beneficiary designation on their investments, TFSAs, or retirement plans, which often name an ex-spouse. These funds are not affected by divorce, and must be changed with the financial institution directly.
Separation does not affect a will, even if that separation has lasted decades, and even if you have had a “new” common law partner for years.
1 Succession Law Reform Act, R.S.O. 1990, c. S.26
2 This is not the case in all provinces, such as Alberta and British Columbia.
3 Part II of the Succession Law Reform Act, ibid.
4 Section 45 of the Succession Law Reform Act, ibid.
5 Section 61, Children's Law Reform Act, R.S.O. 1990, c. C.12
Originally Published by Minden Gross, November 2020
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.