Wills can be handwritten and unwitnessed and still be legal.
Yes BUT the entire document must be all handwritten with no typed or pre-printed portions. Often handwritten wills leave out important parts like naming an executor or disposing of the entire estate.
Video wills are valid in Ontario.
No! This only on T.V. The wills must be in writing and witnessed by two witnesses who signed at the same time as the testator (the person making the will) signed.
I want to leave everything to my children – I can leave my spouse nothing.
Ontario family law gives your spouse a right to share in your estate. They also have property and support rights after death which cannot be ignored.
I don’t need a will because wife/husband gets everything anyway
No!! they only get what is called the preferential share, the first $200,000. Any amount over that is shared with the children.
If I have been living in a common law relationship for three years I don’t need a will because my spouse will get it all.
No! Common law spouses have no rights to share in the deceased spouse’s property if there is no will.
I don’t need a Power of Attorney if I become mentally incapable because my spouse can look after everything, do my banking, sell our home etc.
No! The Ontario Government Public Guardian (PGT)’s office takes control of your assets and will manage your affairs unless a family member takes the time-consuming and expensive steps to be appointed guardian by the court.
I don’t need a Power of Attorney if I have an up to date and valid will
No! Your will only takes effect on death and a power of attorney ends at death.
I can save some tax by naming someone to get RRSP proceeds directly.
Yes, if the spouse or common-law or same-sex spouse, or a dependent child under 18 or one who is permanently disabled can get the benefit of the “roll over” provisions under the ITA. If someone other than these people are the beneficiary they get the full amount but the estate must pay the tax on it. So no tax saving!!
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The legal fees in properly preparing a will are small when compared with legal fees in fixing it after you die or defending its validity if someone says you did it incorrectly.
I can save on probate fees by putting all I own in joint name with my children or someone else.
Yes, if there are no assets which require probate to be dealt with! If you need probate (court authorization) to deal with even one asset all assets owned by you on death might have to be included.
REMEMBER: you lose control of the asset during your lifetime, creditors of the other person can now claim against the asset, including their spouses and there are possible unintended tax consequences.
If my will is valid before my marriage it is equally valid after.
No! If you marry your existing will is revoked and you do not have one unless at the time you signed your will it was prepared “in contemplation of marriage”. Your intended marriage should not be “sometime in the future”.
If I get separated I don’t need to change my will or insurance beneficiaries.
Absolutely incorrect! The beneficiary designations are still in effect and if you die there are serious unintended consequences.
Separation does not affect a will or power of attorney. Such testamentary or agency documents continue in force, and if the testator dies or the donor becomes incompetent, these documents will govern.
Divorce does affect a will. The will is read as if the divorced spouse had predeceased the testator.
Wills and powers of attorney are only effective if properly executed.
They must be signed by the testator/donor in the presence of two independent witnesses, who also sign as the witnesses, both of them signing at the same time in the presence of the testator/donor.
Holograph wills must be wholly in the handwriting of the testator, signed and signed by them. No witness is required.
Beneficiary designations under life insurance policies and retirement savings plans are not affected by separation or divorce.
GENRALLY: Anyone who owns a house or business or investments, who is married or in a relationship, who has children or who wants to benefit friends, relatives or charities, should have a current will AND Power of Attorney.
This article is not intended to be relied upon as legal advice but only to give the reader an overview of the law in Ontario. You need to consult your legal representative to determine the best procedure in your particular circumstances.
