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Do I need a Will?
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Do I need A Will?

A case review of Re: Oliver Estate

One of the most common questions I get asked when people find out what I do for a living is – Do I need A Will?

My answer is always the same – I don’t know, but probably.

I then go on to explain why I think having a will is important.

The first reason I give – which people are most familiar with – a will is an opportunity for you to choose what happens to your money when you pass away.

Ontario is a jurisdiction of testamentary autonomy. That means that, in Ontario, we have the right to choose what happens to our assets when we pass away, subject to certain limited, specific restrictions.1 When you pass away intestate or without a will, however, you lose that opportunity and your estate is distributed to your next of kin as set out in the Succession Law Reform Act.2  If the Deceased has no relatives and dies without a Will then his property becomes the property of the Crown.3

The second reason I give – which people are less familiar with – is that having a will makes administering your estate much easier and significantly less expensive.

Both of these reasons came out on display in Re: Oliver Estate.4

In that case, the Deceased died intestate – without a will – and without any next of kin as defined by the Succession Law Reform Act.5 It was therefore unclear who was entitled to administer or inherit his estate.

The matter came before the court when the applicant applied for a certificate of appointment of estate trustee without a will, requested a waiver of the bond required under section 35 of the Estates Act, and suggested that she and her sister were entitled to inherit the Deceased’s estate.

The applicant attested that the Deceased considered herself and her sister to be his stepdaughters. The applicant and her sister were the children of the Deceased’s former common law spouse. The Deceased and the applicant’s mother were no longer together at the Deceased’s date of death, but the applicant and her sister had remained close to the Deceased prior to his death.

Justice MacLeod dismissed the application. His Honour explained that the daughters of a partner with whom the deceased ceased to cohabit with in 1988 did not fall within any class of person recognized as an heir on an intestacy pursuant to the SLRA and were therefore not entitled to inherit the Deceased’s estate.6 This demonstrates the first reason I give to people who ask if they need a will. Without a will, you risk your estate being distributed in a manner you would not agree with.

Justice MacLeod goes on to consider the applicant’s request for the waiver of a bond and held that even if the applicant were to be appointed, it was unlikely that the court would grant an order waiving the requirement for a bond.

A will avoids this issue. In most circumstances, when a lawyer prepares a will, the lawyer will include a provision waiving the requirement that the appointed trustee post a bond. This makes administering the estate simpler and more cost-effective, especially when dealing with smaller estates.7

Footnotes
  1.   For example, in McCorkill, the Deceased’s Will was set aside for illegality. A person’s obligation to make adequate provision for the proper support of his/her dependants pursuant to Part V of the Succession Law Reform Act is another limitation to an individual’s testamentary autonomy.
     
  2.   Succession Law Reform Act, R.S.O. 1990, c. S.26
     
  3.   See section 47(7) of the Succession Law Reform Act which provides, “ Where a person dies intestate in respect of property and there is no surviving spouse, issue, parent, brother, sister, nephew, niece or next of kin, the property becomes the property of the Crown, and the Escheats Act, 2015 applies. 2015, c. 38, Sched. 4, s. 30.”
     
  4.   Re: Oliver Estate, 2021 ONSC 2751 (CanLII)
     
  5.   For an in-depth discussion of the devolution of a person’s estate on an intestacy, I refer you to a blog written by my colleague Charles Wagner, Law of Intestacy in Ontario.
     
  6.   The decision does not go into any analysis on this issue.  For people wishing to research this topic I refer them to a blog written by my colleagues Greg Sidlofsky & Peter Askew entitled What is a “child”? Which is available at https://www.wagnersidlofsky.com/what-is-a-child/
     
  7.   As of April 1, 2021, the Smarter and Stronger Justice Act, established that there is no requirement to post a bond for “Small Estates” – estates valued at less than $150,000.
     
David Wagner

David Wagner

The author of this blog is David Wagner. David is an associate at Wagner Sidlofsky LLP.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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