Why make a will?

May 17, 2012

by Susan Irwin, Lawyer/Executive Director

The best reason for making a Will is to avoid what happens if you die without one, or "intestate". By not having a Will you give up the right to choose your beneficiaries (i.e. who will inherit your property), the amount of each beneficiary’s share, and the timing of distribution (immediately or at a future time).

Dying intestate means that decisions about who is entitled to your property, how much each person receives and when they will receive it, are made under Ontario’s succession laws. For example, if you are married but have no children at the time of your death, Ontario’s Succession Law Reform Act provides that your spouse will be entitled to your net estate. In other words, your spouse would be entitled to all your remaining property after payment of your funeral expenses, debts and taxes. If at your death you leave behind a spouse by marriage and children, your spouse would be entitled to the first $200,000 in value (or the entire net estate, if valued at less than $200,000), with the remainder being shared between your spouse and children.

But what happens if you are not married to your partner and you are living in a common law relationship? It often comes as a very nasty shock to the surviving common law spouse to learn that he or she does not have the same rights as a ”married” spouse to the deceased’s property. Under Ontario’s succession laws only spouses by marriage have a statutory right to share in the deceased’s estate. Common law spouses do not have that right, but in certain circumstances they can make a claim for support.

Our succession laws also go on to identify successive next of kin, by closeness of blood relation, to determine who would be entitled to inherit if you were not survived by a married spouse or issue (children, grandchildren, great grandchildren etc.). Your estate could go to your parents, if alive, and if not, then to your surviving brothers and sisters or their issue, if any, and so on. Where there are no surviving kin, and no Will, your property would go to the government of Ontario!

Apart from not being able to choose the beneficiaries of your property if you don’t make a Will, the other huge challenge is that without a Will there is nobody with the legal authority to deal with your property or financial affairs. In a Will you can appoint an Executor or Estate Trustee who immediately upon your death has the power to deal with your estate. Without a Will, no one has that authority until someone (usually one of your next of kin) is appointed by the Court. The necessity of having to go to Court can cause lengthy delays resulting in unnecessary hardship and expense for your family.

Providing for our loved ones on death may not, as this column illustrates, be quite as simple as you might have thought. Clearly, we should all take advantage of the opportunity to make a Will. Additionally if you want to be sure that your Will complies with the law and is effective to carry out your wishes, you should consult a lawyer.

Please note that Rural Legal Services is moving to the Northern Frontenac Community Services building in Sharbot Lake. The office will be closed from May 21, 2012 until we re-open at our new location on June 4, 2012. 

This column is not intended to provide legal advice; it is just general legal information provided by volunteer local lawyers and the staff of community legal clinics and Legal Aid Ontario. The law can change. You must contact a lawyer to determine your legal rights and obligations. If you are living on a low income, you may be eligible for free legal help from Legal Aid Ontario (criminal, family or immigration) or your local community legal clinic (income security programs, employment law, tenants’ rights, or human rights). You can reach Legal Aid Ontario at 1-800-668-8258 or visit them online at www.legalaid.on.ca. Contact Rural Legal Services (613) 279-3252 or toll free 1-888-777-8916 for more information.