If you’re reading this, you already know you need a will. Most people do. The trouble is that “making a will” feels like one of those tasks that can always wait until next month. And then next month becomes next year, and next year becomes a decade.
I’ve helped hundreds of families in Peterborough, the Kawarthas, and across Ontario put their wills together. Some come in their thirties, right after buying their first home. Others come in their seventies, after putting it off for decades. A few come after a loved one has died without a will, and they’ve seen firsthand what happens when there’s no plan. (If you’re curious about what happens in that situation, I wrote about it in detail: “What Happens if You Die Without a Will in Ontario?” on our blog.)
This article walks you through the process of making a will in Ontario. I’ll cover the legal requirements, the steps involved, what to bring to your lawyer, and the mistakes I see most often.
Who Needs a Will in Ontario?
The short answer: every adult. If you’re 18 or older and you own anything at all, you need a will. That includes bank accounts, a car, a home, investments, RRSPs, and personal belongings.
But certain situations make a will especially urgent. You need one now if you have children under 18, because your will is where you name a guardian. You need one now if you own property, because your home is likely your most valuable asset and you want to control who receives it. You need one if you’re in a common-law relationship, because Ontario law gives common-law partners no automatic right to inherit. And you need one if you have a blended family, because the intestacy formula doesn’t distinguish between “your” children and “our” children. The formula is rigid and impersonal.
Even if you’re young, healthy, and single, a will saves your family from having to go to court to sort out your affairs. The cost and stress of dying without a will almost always exceeds the cost of making one.
What Makes a Will Valid in Ontario?
Ontario’s Succession Law Reform Act sets out the rules. A valid will must meet four requirements:
- First, it must be in writing. This can be typed or handwritten.
- Second, the person making the will (called the “testator”) must sign the will at the end of the document.
- Third, two witnesses must be present at the same time to watch the testator sign, and they must then sign the will themselves. Neither witness can be a beneficiary under the will, and neither can be the spouse of a beneficiary. If a witness is a beneficiary, their gift under the will is void.
- Fourth, the testator must be at least 18 years old, of sound mind, and acting freely. This means they must understand what a will is, what property they own, who might reasonably expect to benefit, and the effect of the instructions they’re giving.
There’s one exception. A “holograph will” is a will that’s entirely in the testator’s own handwriting and signed by the testator. It doesn’t need witnesses. Holograph wills are legally valid in Ontario, but I rarely recommend them. They tend to be vague, they often miss important provisions, and they’re more likely to be challenged in court. A holograph will is better than no will. But it’s not a substitute for a properly drafted one.
Step by Step: Making Your Will
Step 1: Take Stock of What You Own
Before you meet with a lawyer, take some time to make a list of what you own and what you owe. This includes your home and any other real estate, bank accounts, investment accounts, RRSPs, RRIFs, TFSAs, life insurance policies, vehicles, valuable personal property, and any debts or mortgages.
You don’t need exact numbers. Rough values are fine. The goal is to give your lawyer a picture of your estate so they can draft a will that actually covers your situation. Our Estate Planning Worksheet can help you organise this information before your appointment.
Step 2: Decide Who Gets What
Think about who you want to leave your property to. For most people, this is simple: everything to a spouse, then to children equally if the spouse has already passed.
But your situation might be different. Perhaps you want to leave a specific item to a specific person. Perhaps you want to set up a trust for a minor child or a beneficiary with special needs. Perhaps you want to include a gift to a charity.
There are no wrong answers here. Your will is your document. But it helps to have these conversations with your family before you come to the lawyer’s office, not after.
Step 3: Choose Your Estate Trustee
Your estate trustee (sometimes called an “executor” or “executrix”) is the person who will carry out the instructions in your will. They’ll pay your debts, file your final tax return, distribute your assets, and manage any trusts you create. It’s a big job and it can take a year or more to complete.
Choose someone you trust, someone who’s organised, and someone who’s willing to serve. It’s wise to name an alternate in case your first choice is unable or unwilling to act when the time comes. Your estate trustee doesn’t need to be a lawyer, but they may need to hire one for parts of the job. Our Estate Trustees Handbook explains the role in detail.
Step 4: Name a Guardian for Minor Children
If you have children under 18, your will is where you name the person you want to raise them if both parents die. Without a will, the court decides. The court will try to act in the children’s best interests, but the process is slow and uncertain, and the outcome may not be what you would have chosen.
Talk to the person you have in mind before naming them. Make sure they’re willing and able to take on the responsibility. And name an alternate, just in case.
Step 5: Meet With a Lawyer
A wills and estate lawyer will take the information you’ve gathered and turn it into a legally sound document. They’ll ask questions you may not have thought of. They’ll identify issues, like what happens to your estate if your spouse dies at the same time as you, or how to handle a cottage that you want to keep in the family. They’ll make sure the will works alongside your powers of attorney and your beneficiary designations on RRSPs, TFSAs, and life insurance.
A good lawyer doesn’t just write down what you tell them. They help you think through the consequences and make sure your plan actually works.
Step 6: Sign and Witness
Once the will is drafted and you’ve reviewed it carefully, you sign it in the presence of two witnesses. Your lawyer’s office will normally arrange the witnesses. The witnesses sign a statement confirming that they watched you sign the will and that you appeared to understand what you were doing.
Many lawyers will also prepare an affidavit of execution at the same time. This is a sworn statement by one of the witnesses. It simplifies the probate process later, because the court can rely on the affidavit rather than tracking down a witness.
Step 7: Store It Safely
Your original will must be stored somewhere safe and accessible. Options include your lawyer’s office, a fireproof safe at home, or a safety deposit box at your bank. Tell your estate trustee where it is. There’s no point in having a will if nobody can find it when it matters.
Don’t store your only copy in a safety deposit box that requires your signature to open. This creates a catch-22 that your family will have to resolve through the courts.
Common Mistakes I See
Naming a Beneficiary as a Witness
If a beneficiary or their spouse witnesses the will, that beneficiary’s gift is void. I’ve seen families lose inheritances because of this simple mistake. It’s one of the most common errors in homemade wills.
Forgetting About Beneficiary Designations
Your RRSP, RRIF, TFSA, and life insurance policies each have their own beneficiary designations. These designations override your will. If your will says one thing and your beneficiary designation says another, the designation wins. Review these alongside your will to make sure everything is consistent.
Not Updating After Major Life Events
Marriage, divorce, the birth of a child, the purchase of a home, and retirement are all events that should trigger a review. If you were married before January 1, 2022, your marriage may have automatically revoked any prior will. If you were married on or after that date, the law changed: your prior will remains valid. Either way, review your will after any major change.
Making a Will Without Powers of Attorney
A will only takes effect after you die. But what if you’re alive but unable to manage your own affairs? A stroke, a car accident, a diagnosis of dementia. Without powers of attorney, your family may need to apply to the court to be appointed as your guardian. That process is expensive, time-consuming, and stressful. A will and two powers of attorney together form a complete plan. One without the others leaves a gap.
Assuming a Will Kit Is Good Enough
Will kits aren’t illegal. But they’re designed for the simplest possible situations. If you own a home, have children, have a blended family, own a business, or have any complexity at all, a will kit is unlikely to cover your situation properly. The small amount you save upfront can cost your family dearly later.
What to Bring to Your Appointment
To make the most of your time with a lawyer, bring the following information:
- A list of your assets and debts (including approximate values)
- The full legal names of your spouse, children, and any other beneficiaries, along with their contact information
- The name and contact information of the person you want as estate trustee (plus an alternate), and if you have minor children, the name of the person you want as guardian (plus an alternate)
- Details about any life insurance policies, registered accounts (RRSPs, TFSAs, RRIFs), and pension plans, including current beneficiary designations
Be sure to let your lawyer know about any special circumstances, such as a beneficiary with a disability, a family business, cottage property, or a blended family.
If you haven’t gathered all of this yet, our Estate Planning Worksheet walks you through it.
A Peterborough Example
Let’s say Tom and Karen live in Peterborough. They’re in their early forties. They have two young children and a home worth about $600,000. Tom has a group life insurance policy through work. Karen has an RRSP.
They come to our office for a consultation. We discover that Tom’s life insurance names his estate as beneficiary (a common default that creates unnecessary probate fees). Karen’s RRSP names an ex-spouse from a previous relationship. Neither of them has a power of attorney.
We prepare mirror wills for Tom and Karen, naming each other as primary beneficiary and their children as alternates. We name Karen’s sister as guardian for the children. We set up a testamentary trust so that if both parents die, the children’s inheritance is managed by a trustee until the children are 25. We prepare four powers of attorney, two for each of them. And we advise Tom to change his life insurance beneficiary from his estate to Karen directly, which avoids probate fees on the insurance proceeds. We advise Karen to update her RRSP designation.
The whole process takes about two weeks from consultation to signing. Tom and Karen now have peace of mind knowing that their children, their home, and their finances are protected.
How Often Should You Update Your Will?
I recommend reviewing your will every three to five years, even if nothing obvious has changed. Laws change. Relationships change. Your estate grows or shrinks. A will that was right for you at 35 may not be right for you at 55.
You should also review your will after any of the following:
- Marriage or remarriage
- Separation or divorce
- The birth or adoption of a child
- The death of a beneficiary or estate trustee
- Buying or selling a home
- Starting or closing a business
- A significant change in your finances
- A move to or from Ontario (because wills law varies by province)
Ready to Get Started?
Making a will is one of the most important things you can do for the people you love. It doesn’t need to be complicated, and it doesn’t need to be expensive. What it does need is a bit of your time and attention.
If you live in Peterborough, the Kawarthas, or anywhere in Ontario and you need a will, I’m happy to help. You can reach Bussey Ainsworth at (705) 749-0628 or book a consultation online.
Barry W. Bussey is the principal lawyer at Bussey Ainsworth in Peterborough, Ontario. He has practised law for over 30 years and has experience in wills and estates, estate litigation, and constitutional law, including cases argued at the Supreme Court of Canada.
This article is for general information only and does not constitute legal advice. Every situation is unique. Please consult with a lawyer before making decisions about your will or estate plan.
