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Wills and Lifetime Planning

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This publication guides practitioners in Ontario through taking instructions and preparing wills, powers of attorney, and advance directives.

2 Matter Plans

Overview

The Wills commentary addresses key considerations, including tax implications, the use of testamentary trusts, validity requirements, and dealing with assets in multiple jurisdictions. The Powers of Attorney and Advance Directives commentary covers powers of attorney for property and personal care and advance directives, including guidance on execution, revocation, renunciation, and termination.

The Reference materials folder includes guidance on electronic signing and remote witnessing, and the Getting the matter underway folder contains essential compliance and client engagement documents.

The extensive Retainer Instructions ensure that all necessary information is gathered from the client at the outset of the matter, enabling practitioners to provide accurate and appropriate advice. This supports the preparation of suitable wills or powers of attorney for single clients or complex family situations, including those with extensive or intricate asset portfolios. Precedents offer practical options for addressing blended families, digital assets, businesses, tax-efficient planning, and rights to occupy.

Precedents in this publication include:

  • Library of will precedents for a range of situations and clients;
  • Library of clauses for wills, including:
    • discretionary, Henson and disability trusts;
    • registered education savings plan and registered retirement savings plan;
    • quarantining assets, excluding beneficiaries and burial wishes;
  • Library of attestation clauses;
  • International Will Certificate.
  • Power of attorney for property;
  • Power of attorney for personal care;
  • Advance directive.
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2 Matter Plans Included

  • Item icon ALERTS - Nil
  • Item icon Full Commentary - Wills (ON)
  • Folder icon Reference materials
    • Item icon AI Prompts
      An AI prompt defines a specific task for AI to perform, like drafting a particular document, and provides clear instructions on how to execute that task. The goal is for the AI to quickly create a useful first draft of a document, which the user verifies and refines into a final version, ultimately ...

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    • Item icon Electronic Signing and Remote Witnessing
    • Item icon Further information
  • Item icon Overview
    A will is a legal document that sets out what a person wants done with their property after they die. The person who makes it is the testator. The testator's estate is, in most cases, everything they own apart from property they hold jointly with someone else. A will lets the testator direct how ...

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  • Item icon Summary of the process
    The usual steps in a wills matter include:

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  • Folder icon A. Getting the matter underway
    • Item icon File cover sheet - Wills and lifetime planning
    • Item icon To do list - Wills
    • Item icon First steps
      Firms are required by the Model Code of Professional Conduct, approved by the Federation of Law Societies of Canada for adoption by all Canadian law societies, to verify their client’s identity. Identification means obtaining and recording information about the client at the commencement of the ...

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    • Item icon Taking instructions for wills
      Obtaining written instructions directly from the testator is vital in a wills matter. This avoids the risk of undue influence or duress. It also allows the lawyer to confirm the testator has testamentary capacity. Undue influence or duress can arise when instructions come from the testator's ...

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    • Item icon Testamentary capacity
      Testamentary capacity relates to whether a client is legally capable of making a will. The lawyer determines for themselves whether the client has the legal capacity to make a will, by communicating with the client directly rather than through intermediaries. The lawyer then assesses those ...

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    • Item icon Holograph wills
      A holograph will does not strictly comply with the formal requirements for a valid will in the Succession Law Reform Act 1990. A holograph will must be handwritten by the testator, not typed. Legible handwriting avoids issues when the will goes to probate.

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    • Item icon Client details, verification, and source of funds
    • Item icon Retainer instructions - Wills - For an individual
    • Item icon Retainer instructions - Wills - For a couple
    • Item icon Conflict of interest check
    • Item icon Initial letter to client enclosing retainer agreement
    • Item icon Retainer agreement - Ontario
    • Item icon Scope of work - Wills
    • Item icon Letter to individual client to confirm instructions
    • Item icon Letter to spouse clients to confirm instructions
    • Folder icon If required - Advice on testamentary discretionary trusts
      • Item icon Letter to client advising on testamentary discretionary trusts
      • Item icon Benefits of testamentary discretionary trusts
    • Folder icon If required - Authority for wills
      • Item icon Letter to client's previous lawyer with authority for wills
      • Item icon Authority to client's previous lawyer to forward wills
    • Item icon Time and costs estimates
      Clients may not know how long legal processes take. They need to be given a realistic estimate that is updated as required.

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    • Folder icon If required - Updating costs disclosure and non-engagement
      • Item icon Letter to client updating costs disclosure
      • Item icon Letter to client advising non-engagement
    • Folder icon General deeds, agreements, execution clauses, and statutory declarations
      • Item icon Deeds and Agreements
      • Folder icon Deeds
        • Item icon Confidentiality deed
        • Item icon Deed for general use
        • Item icon Deed of assignment of agreement
        • Item icon Deed of gift
        • Item icon Deed of guarantee
        • Item icon Deed of release
        • Item icon General deed of indemnity
        • Folder icon Library of standard clauses for deeds
          • Item icon Amendment clause
          • Item icon Confidentiality clause for defined information - All parties
          • Item icon Confidentiality clause for defined information - One party
          • Item icon Confidentiality clause for terms of agreement - All parties
          • Item icon Confidentiality clause for terms of agreement - One party
          • Item icon Costs clause
          • Item icon Counterparts clause
          • Item icon Dispute resolution clause
          • Item icon Events beyond control clause
          • Item icon Governing law and jurisdiction clause
          • Item icon Interpretation clause
          • Item icon No assignment clause
          • Item icon Notices clause
          • Item icon Severance clause
          • Item icon Waiver clause
          • Item icon Whole agreement clause
      • Folder icon Agreements
        • Item icon Agreement for general use
        • Item icon Heads of agreement
        • Item icon Non-disclosure agreement - Formal
        • Item icon Non-disclosure agreement - Informal
        • Folder icon Library of standard clauses for agreements
          • Item icon Amendment clause
          • Item icon Confidentiality clause for defined information - All parties
          • Item icon Confidentiality clause for defined information - One party
          • Item icon Confidentiality clause for terms of agreement - All parties
          • Item icon Confidentiality clause for terms of agreement - One party
          • Item icon Costs clause
          • Item icon Counterparts clause
          • Item icon Dispute resolution clause
          • Item icon Events beyond control clause
          • Item icon Governing law and jurisdiction clause
          • Item icon Interpretation clause
          • Item icon No assignment clause
          • Item icon Notices clause
          • Item icon Severance clause
          • Item icon Waiver clause
          • Item icon Whole agreement clause
      • Folder icon Execution clauses
        • Item icon Execution clauses - Agreements and contracts
        • Item icon Execution clauses - Deeds
      • Folder icon Statutory declaration
        • Item icon Statutory declaration
      • Item icon Standard annexure note for documents
  • Folder icon B. Will considerations and other estate planning
    • Item icon Formal requirements
      See also Execution of a will. The formal requirements for a valid will are set out in ss 3–12 of the Succession Law Reform Act 1990.

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    • Item icon Revocation of a will
      Section 15 of the Succession Law Reform Act 1990 deals with when and how a testator can revoke a will. A will that is properly signed and witnessed revokes all earlier wills. A will usually says so expressly, but even if it does not, s 15 revokes any earlier will.

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    • Item icon Divorce or annulment
      Under s 17(2), divorce or annulment of marriage does not revoke a will in its entirety. However, unless otherwise specified in the will, divorce or annulment revokes certain provisions within the will, including:

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    • Item icon Revival of a revoked will
      Under s 19 of the Succession Law Reform Act 1990, a testator can revive all or part of a validly revoked will by:

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    • Item icon Executors
      An executor is a person appointed by a will to administer a testator’s estate. The feminine form is executrix. An executor is also referred to as an estate trustee or a personal representative. The Succession Law Reform Act 1990 uses the term executor rather than estate trustee. However, a ...

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    • Item icon Burial and cremation
      The executor has a common law right to possession of the deceased's body, with control over it and authority to arrange the burial. The estate's administrator does not have this right.

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    • Item icon Guardianship and decision-making responsibility for minors
      Testators often find it hard to decide whether to appoint a guardian of property and a person with decision-making responsibility for minor children in their will. Most often, the decision is not to do so. After both parents die, children usually go to whichever family members are best able to care ...

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    • Item icon Dispositions of property
    • Item icon Death benefits
      Death benefits are payments or entitlements that the deceased's beneficiaries or dependants may obtain from:

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    • Item icon Capital gains tax
      Death is a taxable event and significant tax liability can arise from the testator's death. The deemed disposition rules under the Income Tax Act 1985 can trigger capital gains taxes that must be paid before the distribution of the estate to beneficiaries. Clients commonly discuss tax planning ...

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    • Item icon Estate representative's tax obligations
      An estate representative is referred to as a legal representative under the Income Tax Act 1985. A legal representative is normally the executor named in the will. When the deceased is intestate, an individual can apply to the court to be named the administrator of the estate and request to be ...

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    • Item icon Trusts
      A trust is a creation of the common law that separates legal ownership from beneficial ownership. The person who creates the trust, the settlor, transfers their property to a trustee, who holds it in trust for the benefit of the beneficiary. A trust creates a fiduciary relationship between trustee ...

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    • Item icon Equalization payment under Family Law Act 1990
      Under the Family Law Act 1990 a surviving married spouse can make a property division claim against the deceased spouse's estate. The claim is based on the equalization of net family property. Section 5(2) provides that:

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    • Item icon Election of Surviving Spouse
    • Item icon Intestacy
      Intestacy describes the situation where a person dies without a valid will. A partial intestacy arises where the testator leaves a valid will that covers only some of their assets.

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    • Item icon Challenges to a will
      A challenge to a will questions its validity, not the fairness of its provisions. A court cannot set aside a will simply because its provisions are unfair or the testator did not leave the estate to their descendants. The court can set aside the testamentary intentions expressed in a will only ...

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    • Item icon Notice of Objection
    • Item icon Notice of Appearance - Form 75.4
    • Item icon Notice of Motion for Directions
    • Item icon Order in an Estates Proceeding
    • Item icon Dependants’ claims
      Part V of the Succession Law Reform Act 1990 provides that the deceased's dependants can claim support from the estate of the deceased. Under s 58(1), when the deceased dies testate or intestate and fails to adequately provide for the support of their dependants, the dependants can apply ...

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    • Item icon Notice of Application
    • Item icon Affidavit
    • Item icon Notice of Appearance
  • Folder icon C. The will
    • Folder icon Wills for individuals
      • Item icon Individual will - Client 1
      • Item icon Individual will - Client 2
    • Folder icon Wills for spouses
      • Item icon Spouse will - Client 1
      • Item icon Spouse will - Client 2
    • Folder icon Wills for blended families
      • Item icon Blended families
        Testators in second or later marriages or relationships often want to protect the children of an earlier relationship. Regardless of how harmonious a blended family may be, problems can arise.

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      • Item icon Blended family will - Client 1
      • Item icon Blended family will - Client 2
    • Folder icon Wills creating testamentary discretionary trusts
      • Item icon Testamentary trusts
        A testamentary trust is created by a will. The terms of a testamentary trust are included in the will and take effect when the testator dies. Section 108(1) of the Income Tax Act 1985 defines a testamentary trust as a trust that arises on and as a consequence of an individual's death.

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      • Item icon Will creating testamentary discretionary trust - Client 1
      • Item icon Will creating testamentary discretionary trust - Client 2
      • Item icon Will creating multiple testamentary discretionary trusts - Client 1
      • Item icon Will creating multiple testamentary discretionary trusts - Client 2
    • Item icon Prompt comparing retainer instructions with draft wills
    • Folder icon Library of clauses
      • Item icon Assets - Asset management
      • Item icon Assets - Quarantining assets from a nominated jurisdiction
      • Item icon Beneficiaries - Excluding beneficiaries - Some reasons for excluding beneficiaries
      • Item icon Beneficiaries - Separate fund for particular beneficiary - Clause to establish trust
      • Item icon Body - Burial in reserved plot
      • Item icon Body - Burial with modest funeral
      • Item icon Body - Cremation
      • Item icon Body - Funeral service location
      • Item icon Body - Medical research purposes excluded
      • Item icon Body - Medical research purposes
      • Item icon Body - Organs for donation
      • Item icon Clause creating a Henson disability trust
      • Item icon Clause establishing disability trust with trust deed annexed - Appointing trustees
      • Item icon Clause establishing disability trust with trust deed annexed - Executors as trustees
      • Item icon Clause to establish disability trust - Executors as trustees
      • Item icon Clause to establish disability trust - Executors to appoint trustees
      • Item icon Clause to leave money or property via will to pre-existing disability trust
      • Item icon Decision-making responsibility and guardianship of minor's property - Appointment when other parent has not survived
      • Item icon Deemed disclaimer of an interest under this will
      • Item icon Divorce - Will in contemplation of divorce
      • Item icon Digital rights - Specific bequest of digital rights
      • Item icon Education trust for grandchildren
      • Item icon Family Law Act equalization clause
      • Item icon Gift of business to employees
      • Item icon Gift to spouse with reasons for children of previous marriage
      • Item icon Home - Right of occupation of home
      • Item icon Hotchpot - Excluding hotchpot
      • Item icon Hotchpot - Including hotchpot
      • Item icon Lawyer - Direction for appointment of lawyers
      • Item icon Lawyer executor - Charge fees
      • Item icon Life estate
      • Item icon Life insurance used for debts
      • Item icon Monthly payment - Establish a monthly payment not an annuity
      • Item icon Option - Grant an option to purchase to a beneficiary
      • Item icon Pets - Gift of pets
      • Item icon Registered education savings plan
      • Item icon Registered education savings plan - Wound up
      • Item icon Registered retirement savings plan
      • Item icon Spouse - Definition - Spouse of a person
      • Item icon Testamentary trust intentions for beneficiaries
      • Item icon Trustee - Separate trustee for minor beneficiary
    • Folder icon Library of deeds, contracts, and codicils
      • Item icon Deed not to change will
      • Item icon Deed not to change will in favour of mortgagee
      • Item icon Mutual wills
        A mutual will is a will made together with a binding agreement between the testators. The agreement includes a clause preventing either of them from revoking their will without the other's consent, so neither can change their will after the other dies. The survivor must deal with the estate ...

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      • Item icon Mutual wills - Contract to make mutual wills
      • Item icon Codicils
        A codicil is a document that changes or adds to a will, leaving the rest of the will in place. It refers directly to the will and sets out the exact changes or additions, and it is signed and witnessed in the same way as the will. A precedent Codicil appears in the Library of clauses, deeds, ...

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      • Item icon Codicil
    • Folder icon Library of attestation clauses
      • Item icon Blind
      • Item icon Can read but unable to write or make a mark
      • Item icon Can read but unable to write
      • Item icon Can write but unable to read
      • Item icon Unable to read but can speak and understand English and can sign
      • Item icon Unable to read or speak English but can sign
      • Item icon Unable to read or write
      • Item icon Unable to speak or read English or write
    • Folder icon Disability trust - Deed, variance, and clauses
      • Item icon Henson trust
        A Henson trust is a testamentary trust. It is designed to allow a disabled person to collect means-tested government benefits, for example, under the Ontario Disability Support Program, while still receiving support from the trust. The trust supplements the beneficiary's income without exceeding ...

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      • Item icon Qualified disability trust
      • Item icon Qualified disability trust deed
      • Item icon Deed of variation for qualified disability trust
      • Item icon Clause creating a Henson disability trust
      • Item icon Clause to leave money or property via will to pre-existing disability trust
      • Item icon Clause establishing disability trust with trust deed annexed - Executors as trustees
      • Item icon Clause establishing disability trust with trust deed annexed - Appointing trustees
      • Item icon Clause to establish disability trust - Executors as trustees
      • Item icon Clause to establish disability trust - Executors to appoint trustees
    • Folder icon Multi-jurisdictional estates and international wills
      • Item icon Multi-jurisdictional estates
        When a deceased owns assets in more than one country or province, the will or letters of administration usually must be probated in each place to deal with the property there. Probating the will is the process of having the court confirm that the will is valid. Resealing is the process of having a ...

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      • Item icon International wills
        Canada has ratified the Convention Providing a Uniform Law on the Form of an International Will (the Convention). Countries that have ratified the Convention treat an international will that meets its requirements as valid. The Convention's requirements assist testators who have assets in more than ...

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      • Item icon International will certificate
  • Folder icon D. Execution
    • Item icon Signing the will
      Under s 4 of the Succession Law Reform Act 1990, a will must be signed by:

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    • Item icon Letter advising client that wills are ready for signing
    • Item icon Letter reminding client that wills are ready for signing
    • Item icon Affidavit of Execution of Will or Codicil
    • Item icon Remote signing
      Remote witnessing of a will is permitted under s 4(3) of the Succession Law Reform Act 1990. At least one of the witnesses must be a licensee of the Law Society of Ontario. All signatures must be made contemporaneously in counterpart. The identical copies signed in counterpart together ...

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    • Item icon Rules relating to witnesses
      Strict rules govern who can be a witness of a will signing and whether a will can include gifts to a witness.

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    • Folder icon If required - Sending will to client for signing
      • Item icon Sending a will to a client to be signed
        A lawyer who sends a will to a client for signing explains the signing process. Otherwise, the will may not be signed correctly and so may be invalid. The precedent Enclosure – Instructions for Signing on the matter plan can be sent to the client with the will.

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      • Item icon Letter to client enclosing will to sign
      • Item icon Instructions for signing
  • Folder icon E. Finalizing the matter
    • Item icon Storage
      A will kept in safe custody is entered into the safe custody register and placed in a trackable envelope. It is never kept in the file. A copy of the will should be provided to the testator. Including the firm’s contact details on the cover sheet or in a letter enclosing the will informs the ...

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    • Item icon Revising the will
      Testators are advised to review their will regularly. This may be of little significance for small estates, or where the estate is to pass to the testator’s spouse and then to their issue, but it is relevant in other situations. Events that trigger revising a will include a change in:

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    • Folder icon If required - Will not signed
      • Item icon Letter to client finalizing the matter when will not signed
    • Item icon Letter to client finalizing the matter
    • Item icon Invoice recital - Wills
    • Item icon Closing the file
      Ending the retainer informs the client in writing that all work on the matter is complete, and that no further work will be undertaken unless the firm is otherwise instructed. A precedent letter is available on the matter plan. Firms holding client funds in trust must comply with the regulations ...

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    • Item icon File closing checklist
  • Item icon Comments and suggestions for By Lawyers

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