Barrister & Solicitor


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Wills & Estates: Introduction

A will is the instrument by which a person has the power to devise, bequeath or dispose of all of the property to which he or she is entitled at the time of his or her death. In most cases, a person must be at least eighteen years of age in order to make a valid will.

A will is defined by the Succession Law Reform Act to include:

  1. a will;

  2. a codicil;

  3. an appointment by will or by writing in the nature of a will in exercise of a power; and

  4. any other testamentary disposition.

In the past, wills were regarded as being relatively straightforward. People often did not take the trouble to prepare a will unless and until they had children (which historically usually occurred within a married relationship). Husbands and wives would complete wills together, and pay a relatively nominal fee for the service. With increasing rates of separation and second families, however, it has become apparent that there is an ever-growing list of issues to be kept in mind in the will drafting process, including the lawyer’s potential conflict of interest in acting for both spouses. No longer do the best interests of married spouses necessarily coincide. Moreover, just because spouses are separated does not mean they no longer have obligations to the other, even if they are divorced. For example, there may be terms of a Separation Agreement or Court Order that must be honoured, that survive a spouse’s death. Increasingly, there will be inter-jurisdictional issues to consider, that arise as a result of people living in or having assets located in multiple jurisdictions, only one of which is the Province of Ontario. In addition, it is likely that new norms will arise in response to expanding definitions of “spouse” and “family”. Finally, the aging of the “baby-boomer” generation may well present new challenges and tests, that will serve to accelerate the rate of change in this area of the law.

I consider below various issues relating to wills and estates, which, in no way, should be treated as a complete analysis of the considerations to be kept in mind in the estate planning process.

Please choose from the following:

For ease of navigation between topics, the above links are duplicated in the Table of Contents.