Wills

What is a will?

A will is a written document that outlines how the deceased wanted his or her assets distributed after death. In Ontario there are very strict rules regarding the formalities of execution including how the will should be signed, the number of witnesses required, and who may not be witnesses. The Holograph Will is an exception to the general rule regarding strict compliance with these formalities of execution . The Holograph Will is a document wholly in the testator’s own handwriting that is signed by the testator. For more particulars about the formalities of execution for a standard testamentary document and a description of a Holograph Will I refer you Ontario’s Succession Law Reform Act, R.S.O. 1990, c. S.26.

How do I get a copy of someone\’s will after they die?

Disinherited family members and disappointed beneficiaries often are denied access to a copy of a Will by the executors. If there has been an application for a certificate of appointment the easiest way to obtain a copy of a will is to approach the Registrar at the Superior Court of Justice in the jurisdiction where the deceased resided. The court will allow inspection of the file and for a fee, a photocopy of the Will.

If there has not been an application for probate, then any person who appears to have a financial interest in an estate may apply to court (without notice to the executor) for a copy of the Will. This motion is made in accordance with section 9 of the Estates Act, R.S.O. 1990, c. E.21 and Rule 74.15(1) of RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194.

What is an executor / estate trustee and what are his/her duties?

An executor is the personal representative appointed by the deceased in his/her Will. If there is no will a court can appoint someone an Estate Trustee without a Will to be the personal representative of the estate. It is the executor’s responsibility to gather in the assets of the estate, pay the debts of the deceased, apply for probate (if necessary) and distribute the assets of the estate in accordance with the terms of the Will. In general terms the executor/estate trustee must collect the assets that belonged to the estate, ensure all liabilities are paid (including taxes), maintain the accounts of the estate, and distribute the assets in accordance with the terms of the will. If there is no will, then the assets of the estate must be distributed in accordance with the laws of intestacy as outlined in Ontario’s Succession Law Reform Act, R.S.O. 1990, c. S.26. When assuming this role it is imperative to remember that the executor is a fiduciary which requires the executor to administer the Will solely in the interest of the beneficiaries. For more particulars on the duties of an executor, I refer my clients to 4 different sites for an overview of their responsibilities:

1. TD Waterhouse’s on line checklist and description of responsibilities found at here.
2. An article published by the Certified General Accountants of Ontario titled “Executorship: A Guide for Those Called Upon to Act as an Estate Trustee. This can be found here.
3. Canada Revenue Agency’s Advice – What to do when someone has died.
4. Canada Revenue Agency’s Frequently Asked Questions on what to do when someon has died.
5. Ontario Government Advice on When Someone dies – Pensions, Benefits and Personal Finance.

What is a clearance certificate?

Answer from Canada Revenue Agency website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

What steps have to be taken to obtain clearance certificate?

Answer from Canada Revenue Agency website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

How do I prepare tax returns for a deceased person?

Read the Canada Revenue Agency\’s Guidelines on what to do after a death. (T4011, Preparing Returns for Deceased Persons). You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

What do I do if I need information from a deceased person\’s tax records?

Answer from Canada Revenue Agency website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

When will a Court remove an estate trustee / executor?

Historically, Ontario’s Courts needed to see evidence of misconduct in order to remove trustees. However, there is also case law in Ontario to suggest that courts have removed executors when there is hostility either between co-executors or an executor and beneficiary such that it is no longer possible for the executor to exercise his duties in an completely impartial and objective manner .

What happens if the will is lost?

In Ontario, this situation is covered under Rules 75.02 and 75.06 of RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194.

An application must be made to court to “prove the Will” that was lost. If everyone who has a financial interest in the estate agrees to accept the contents of the “lost will” as the intended last will and testament of the deceased then the court will likely rely on affidavit evidence only. If there is no consensus amongst those with financial interests in the estate, then the person who wishes to “prove the Will” must bring an application to court and ask for directions. In this instance, affidavit evidence will be insufficient. It is important to remember that the courts assume that if the testator had possession of the “lost Will” and no one can find it then unless there is proof to the contrary the court will presume that the Testator revoked or destroyed the will.

Does the executor have to apply for probate?

Depending on what type of assets are in the estate the executor may have to apply for probate. You might wonder why probate is necessary when the authority of an executor flows from him/her being named in the Will as the estate’s personal representative. The difficulty arises because third parties who have financial dealings with the estate must be sure that the executor is the authorized representative otherwise those third parties may be held responsible for unauthorized distribution of those assets. Accordingly, many institutions like banks, insurance companies, public corporations and the land registry office that require the executor to have a certificate of appointment of estate trustee with a will (Probate). This document essentially establishes that the testamentary document is the valid last will and testament of the deceased.

Does the executor have to provide beneficiaries with an accounting?

Under certain circumstances beneficiaries can compel an estate trustee to pass his/her accounts. The Executor has an absolute duty to maintain proper records and accounts. But he has no legal obligation to pass his accounts. If the beneficiaries approve of the accounts they may release the trustee upon giving their approval. If the beneficiaries refuse, the executor/trustee may voluntarily apply to court for approval of the accounts. There are instances where beneficiaries want to see the records and they, as parties with a financial interest in the estate may apply to court (without notice to the executor) and request that an order requiring the estate trustee to pass accounts. This process is done pursuant to R. 74.15 (1)(h) of the RULES OF CIVIL PROCEDURE – R.R.O. 1990, Reg. 194.

What happens if the named estate trustee dies before the testator?

A properly drawn will names an executor and trustee and also names an alternate if, for whatever reason, the first person named refuses or cannot fulfill his/her mandate. When both the named and alternate estate trustees are unable or unwilling to act, then someone who has the support of people with a financial interest in the estate should bring an application to be estate trustee with a will. If there is no consensus candidate or person agreeable to a majority of the beneficiaries and more than one competing person wants to be estate trustee, the court will review all the circumstances and decide. Sometimes a financial trust company will be the compromise choice. There is no iron rule when more than one person wants to be estate trustee in these circumstances, but normally courts give preference to those closest to the deceased. For example if a spouse, child and grandchild each wanted to be the estate trustee, in order of preference, courts have preferred spouses, then children, then grandchildren.

When it comes to inheritance, is a common law spouse entitled to the same rights as a married spouse?

The legislation only allows a common law spouse to sue the Estate and seek support as a dependant. There is no statutory right to an inheritance or to property through an equalization payment. Clearly, a common law spouse has fewer rights than she otherwise would have if she had been married. In one case heard before the Supreme Court of Canada it seems that this different treatment does not offend the Charter of Rights and Freedoms. For more information about this question please see this detailed article or a summary published in The Jewish Tribune.

Is a contract that waives a spouse\’s right to an inheritance binding?

Maybe. Under the Family Law Act such a contract can be set aside under certain circumstances and under the Succession Law Reform Act, a contract is only one factor taken into account when a judge decides whether or not to make a support order for a dependant. For more information about this question please see this detailed article or a summary published in The Jewish Tribune.

Assume a parent has a joint bank account with one of their children. When that parent dies who gets the money – the surviving joint account holder or the estate?

Everything depends on the intention of the parent. Did the parent need his child’s help to manage finances and really want the money to be distributed in accordance with the instructions set out in the Will or did he want the joint account holder to receive the money? The court will examine the evidence and make the determination accordingly. If the evidence is unclear the court will presume that the surviving joint account holder is holding the money in the joint bank account in trust for the estate. This is called a Resulting Trust. For more information about this question please see this detailed article or a summary published in The Jewish Tribune.

What government benefits are available to the family of the deceased?

There are many government programs designed to assist people who have to deal with the financial burden that occurs upon the death of a loved one. These include:

For more information on these issues I refer you to this excellent site.

How do I calculate the amount of the estate administration tax?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

How do I prove I\’m an heir (someone who inherits property) to an estate?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

How is a estate distributed?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

How can I find out what happened to an estate of a family member?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

How can I find court forms for estate proceedings?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

Why is the Office of the Children\’s Lawyer involved in an estate or trust matter?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

Why is the Public Guardian ad Trustee involved in an estate or trust matter?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

What is a living will?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.

Is a living will the same thing as a Power of Attorney?

Answer from Justice Ontario website. You will be leaving Wagner Sidlofsky LLP\’s website by clicking this link.