What is a Will?

A Will is a legal document signed by you that appoints a legal representative, known as your Executor and Trustee (or “Estate Trustee”), to manage your affairs upon your death. Your Will provides binding instructions that your Estate Trustee must follow in managing your affairs, including who should receive your assets and how. It takes effect only upon the date of your death and can be changed by you any time before then, so long as you have testamentary capacity (i.e., the mental capacity required to make a valid Will or codicil).

Why make a Will?

A Will is the best way to ensure that your affairs are handled in the manner that you wish after your death, including who should be responsible for your affairs, who should receive your assets, and on what conditions. Providing clear and binding instructions is also the best way to avoid disputes amongst your family members and the added expense associated with administering your affairs without a Will.

For parents and caregivers of persons with a disability, a Will is critical to ensuring that the present arrangements you have made and your future plans for your loved one with a disability are respected. Your Will is your best means of making certain that the finances you have set aside for your loved one are protected and that his or her eligibility for government benefits, such as Ontario Disability Support Plan (ODSP) benefits, are maintained. This is also your chance to determine who has control over those finances and to ensure that they manage those finances in your loved one’s best interest.

It may also be important for an individual with a disability to make a Will if it is in his or her ability to do so. This is particularly the case where an individual has a Registered Disability Savings Plan (RDSP) or any real estate or other property in his or her own name. In the absence of a Will, any assets a person has in his or her own name at death will be divided on the basis of intestacy (in other words, in accordance with the Succession Law Reform Act) rather than his or her own wishes.

When should I make a Will?

Whether or not you already have a Will, here are some situations in which it is strongly recommended that you consider writing or updating your Will:

    • When your responsibilities change: Practically speaking, many people do not think about making a Will until they have someone in their lives whose future well-being is dependent on them – usually a spouse, a child, or a sibling. If you have someone in your life that you have not considered in an existing Will, or if you do not have a Will, his or her needs are a good reason to prepare or revise a Will.
    •  On marriage: If you already have a Will, you should be aware that if you get married after the date of your Will, that Will is effectively revoked by law, unless the Will specifically contemplates your marriage.
    • On Marriage Breakdown: If your marriage breaks down after you have made a Will, you should know that just because you are legally separated from your spouse, your Will and any appointments of or gifts for your spouse under that Will remain in effect. This is the case even if you have been separated and estranged from your spouse for decades. In the event of separation, in order to ensure your wishes on your death are respected, it is important to enter into a separation agreement that contemplates what happens on your death and then to make a new Will.  If you divorce, your Will remains in force; however, it will be treated as if your former spouse had predeceased you. That being said, it is still a good idea to review your Will and determine if the appointments of Estate Trustees and Beneficiaries are still appropriate – very often changes are required after a divorce. It is also important to note that this is the law in Ontario. The laws in other jurisdictions (such as Alberta, for instance) do not follow this rule.
    • When your assets or jurisdiction (province or country you live in) changes: Changes in your place of residence may also be a good reason to review and, if necessary, revise your Will. Your existing Will may be limited in its application to assets you hold in Canada. If you subsequently acquire assets outside of Canada, you should consider drafting a new Will specific to those assets (potentially with the assistance of a lawyer practicing in that jurisdiction) or at the very least, updating your existing Will to take into account assets outside of Canada.
    • Regular Review and Updates: Even if there have not been changes in your own marital or financial situation, it is wise to review and, if necessary, update your Will every few years. Your relationships with the people you appoint under your Will as Estate Trustees and Beneficiaries, their life circumstances, and the needs of your loved ones are not static, and very often what seemed appropriate three or four years ago will not be appropriate today. More importantly, the law can change. The options available for future planning for people with disabilities are considerably different than they were a decade ago. Therefore, it is a good idea to review your Will regularly with a lawyer who is well versed in issues related to future planning for persons who have a disability. Recent legal developments related to Qualifying Disability Trusts, Lifetime Benefit Trusts, and RDSPs, among other things, demonstrate the importance of keeping your Will current.

Who can make a Will?

In Ontario, anyone over the age of majority (age 18) can make a Will, so long as they are of “sound mind” (i.e., have “testamentary capacity”).  Testamentary capacity is the legal term for possessing the mental ability to meet the following requirements:

    • You must understand the extent of your property being disposed of (meaning the value of all real estate, cash, investments, personal items, etc.). This means that you need to be able to identify your major assets, their value, and your ownership interest in them (for example, whether your home is jointly owned).
    • You must understand the nature of the act of making a Will, the directions included in that Will, and the effects those directions will have. In other words, you must be able to understand that in making the Will, you are giving instructions for the division of your assets upon your death.
    • You must appreciate the claims that others (such as family and others who depend on you) might have or supports they expect you to provide.
    • Finally, you must be of sound mind, meaning that you have no delusions influencing your Will in disposing of your property.

In some cases, a person may not have the capacity to enter into a contract but they may have the capacity to make a Will.

Capacity is also not a fixed and unchanging state. A person who has capacity today may not have capacity tomorrow. For instance, many persons with dementia or mental health issues may be able to make a Will during periods of lucidity.

This issue is a particular concern if you have a mental health or intellectual disability. You will want to ensure that your lawyer performs the appropriate assessment and keeps detailed records to ensure that your wishes are respected.

What is undue influence?

Even if there is no question as to your capacity, your Will may still be open to challenge where you are operating under the undue influence of another person. The law is very clear that the gifts you make in your Will must be voluntary – an expression of your wishes, not the wishes of any other person. If you are vulnerable – due to isolation, infirmity, ill health, or dependency on others – then you may be open to others exerting their influence on you by threats, continual pressure, or other forms of coercion. Where such influence causes you to include instructions in your Will that you would not have otherwise (such as gifts you did not actually want to make, or excluding family members that you actually wanted to benefit), then the Will will be open to challenge.

This issue is a particular concern if you have a mental health or intellectual disability. You will want to ensure that your lawyer performs the appropriate assessment and keeps detailed records to ensure that your wishes are respected.