Wills

What is a Mutual Will?

Where a couple, married or common-law, want to make their wills together, it is expected that they have reached a common understanding as to how their respective estates will be handled, irrespective of which of them survives the other. This may be so even where either of the parties has children from a prior relationship.

The “mutual wills doctrine” provides that where two parties have made a contract that, having made wills together, neither of them will change his or her will after the death of the other, the survivor takes any property acquired under the will of the deceased on trust, to deal with it in the same manner as is set out in the will that the survivor made at the same time as the deceased made the deceased’s will.

What are the important considerations for a Will?

It is important to consider the issues below in order to provide comprehensive instructions to your lawyer, so that your Last Will and Testament in Ontario can be properly executed.

Clear & unambiguous provisions in the Will:

If the provisions of the will lead to suspicion as to the Testator’s (person making the will) intentions, any of the beneficiaries may challenge the will. The beneficiary can also challenge a will if they are dissatisfied with the Executor’s (person administering the estate) will interpretation.
In certain circumstances, the will’s executor may be personally liable for an incorrect interpretation of the obscure provisions. The executor needs to be very cautious when administering wills where interpretation issues are prevalent. Consulting one of our experienced Wills Lawyers is advisable in such a scenario to avoid unnecessary and costly estate litigation.

If you are married:

Will planning became more complex as a result of changes brought about by the FLA in 1986. Absent a marriage contract waiving it, a surviving spouse now has the right to choose between accepting the entitlement under the will and claiming an “equalization payment” representing a sharing of the “marriage spoils.” Unless the will provides that the surviving spouse’s entitlement, if any, under the will is in addition to the equalization entitlement, the surviving spouse will be put to an election, having to choose either the former or the latter.

Having children or dependants:

Part V of the SLRA is intended to ensure that certain persons who were financially dependent upon the deceased during the deceased’s lifetime, adequate provision having been made by the deceased for those persons. Our Will Lawyers carefully craft a tailored solution for you.

Family Provisions:

A family member of the deceased person asks for a provision in their estate. The child, spouse, or dependent of the deceased person can make a family provision application if they feel they have been inadequately excluded from the will and estate.

Choosing a guardian for minor children:

If there are minor children, it is important to nominate a guardian for them. An executor may also be appointed as a guardian. The involvement of estate trustees protects the legal interest of those beneficiaries who do not have any guardians or attorneys. If mentally incapable beneficiaries or beneficiaries who don’t have any attorney are present, estate trustees can interact with the Office of the Public Guardian. Consult one of our Will Lawyers in Mississauga, serving Brampton, Toronto and the Greater Toronto Area, today. 

Assets requiring specific planning or management:

Estate planning should be done in a comprehensive manner where the will and related factors should be properly laid out in an organized way to avoid future disputes. Though estate litigation cannot be avoided entirely, it can be minimized to a large extent if careful planning and organization are done in advance. Our experienced wills and estate lawyers can help you in this regard.

Estate Trustee or Executor:

A significant decision in the entire estate planning is to nominate a dependable Estate Trustee / Executor & an alternate Executor in case the main executor dies, becomes incapacitated or is removed. Estate Trustees & Executors need to act in the best interest of the estate and its beneficiaries. They have a fiduciary duty to administer the estate as per the testator’s wishes. The executor also has personal liability for any improper conduct related to the management of the estate’s assets. Their responsibilities include collecting all the testator’s assets, repaying all the creditors and distributing the balance of the estate as per the testator’s wishes. A record is also maintained for all their activities and shared with the beneficiaries. An application can be made to replace an executor if the estate administration is experiencing undue delays or any other obstructions. Our Will lawyers carefully draft the roles & responsibilities of an executor / trustee and tailor the limits of the executor’s powers on a case-by-case basis.

How to Vary / Revoke or Amend a Will?

It is equally important to understand that future events may require a review of the will to see if it is still appropriate. Such events would include, for example, marriage, divorce, births, deaths, adoptions, and substantial changes in net worth. Our Will lawyers in Mississauga, serving Brampton, Toronto and the Greater Toronto Area, can help you in preparing variations, amendments and codicils to the original wills & ensure that your last will supersedes the previous will if any.

Can a Will be Challenged?

A will can be challenged if a beneficiary believes that the will does not reflect the deceased’s true intentions or that there was duress, undue influence, or forgery. If you wish to contest or challenge the will’s validity, you can do it if you have an interest in the estate either under the will or in intestacy. Law Wise can help you with will challenges.

Application for contesting a will is made to the court where the will is being deposited or probated. If the will has been probated, a motion in court is made to return the Certificate of Appointment of Estate Trustee. You need to challenge the will by moving in a direction. If the will is not probated, a Notice of Objection is filed with the registrar to prevent probate until the litigation is settled.