While You’re Here: Why and How to Create a Last Will and Testament

Death is, for many, an uncomfortable subject. Yet, the simple fact is that a deceased individual’s estate, comprising their possessions, property and other assets that remain after outstanding debts are paid, must be distributed. This is accomplished in one of two ways. If an individual dies intestate—without a will—their estate is distributed according to intestacy laws. With a valid last will and testament, assets are distributed according to the individual’s wishes.

What is a last will and testament?

A last will and testament, often simply referred to as a will, is a legal document that instructs how the assets and property of a deceased individual—the testator—are distributed, to whom and in what amounts, after death. A will may also name the testator’s preferred guardian of their surviving minor children.

Why do I need a will?

Should you die intestate, your estate will be distributed in accordance with Ontario’s Succession Law Reform Act. The Act sets out a specific sequence of asset distribution among spouses, children, parents, and other descendants. This can be problematic. For example, if a married individual with a financially independent child died without a valid will, and had wished their entire estate—worth, in this case, less than $200,000—be inherited by their offspring, the deceased’s assets would still be given to their spouse.

Similarly, were a childless, unmarried individual with living parents and siblings to die intestate, and had wished their estate be inherited by their brothers or sisters, the Succession Law Reform Act makes clear that the deceased’s parents would nonetheless inherit. The further down the line of decedents, the more complex the rules of asset distribution become, often requiring legal assistance to clarify.
In short, a last will and testament puts the power of choice into the hands of the testator, determining not only who inherits assets, but how said assets are divided. A valid will also permits a portion or the entirety of an estate to be distributed outside the testator’s blood relatives—for example, to friends or charitable organizations.

Can I write my own will?

Yes. An entirely handwritten will—known as a holograph will, signed and dated by the testator—is a valid document, exempt from the statutory requirement of being witnessed and signed by two non-beneficiaries. However, holograph wills must meet certain criteria, being written wholly in the handwriting of the testator, bearing the testator’s signature, and expressing clearly their intention to direct their estate’s distribution.

The relative simplicity of a holograph will belies its possible drawbacks—such as potential difficulty in locating the will if its whereabouts were not communicated, the use of imprecise language that does not make clear the testator’s wishes and intended beneficiaries, poor legibility, or failure to account for an unforeseen surplus of monetary assets to be distributed.

Why should a lawyer prepare my will?

A commonly held belief is that preparing a will is straightforward. For that reason, doing so is often neglected, or done in a manner such that the resultant document fails to withstand contestation or communicate the testator’s intent. A valid, lawyer-drafted last will and testament ensures the necessary formalities are contained therein, proper form is followed, and errors or ambiguity are avoided. Having your will created by a qualified estate lawyer is an investment in the future of your family or other beneficiaries, and provides assurance that your final wishes concerning your estate are fulfilled.