2 Matter Plans Included
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ALERTS - Nil
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Full Commentary - Wills (ON)
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Reference materials
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AI Prompts
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Electronic Signing and Remote Witnessing
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Further information
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Overview
A will is a legal document that expresses an individual's testamentary intentions. The person who makes a will is called the testator. The testator's estate consists of everything they own, except for property held jointly with another person. A will allows the testator to specify how they wish ...
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Summary of the process
The usual steps in a will matter are:
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A. Getting the matter underway
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File cover sheet - Wills
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To do list - Wills
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First steps
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Taking instructions for wills
Obtaining written instructions is vital for a wills matter. Instructions come from the testator directly. This avoids the risk of undue influence or duress over the testator. It also allows the lawyer an opportunity to confirm the client has testamentary capacity. Undue influence or duress can ...
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Testamentary capacity
Testamentary capacity relates to whether a client is legally capable of making a will. The lawyer has to determine for themselves whether the client has the legal capacity to make a will. This is done by communicating with the client directly, not through intermediaries. The lawyer then assesses ...
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Holograph wills
A holograph will does not strictly comply with the formal requirements for a valid will in the Succession Law Reform Act 1990. The holograph will must not be typed, but strictly handwritten by the testator. The testator is encouraged to write as legibly as possible to avoid issues when the will ...
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Client details, verification, and source of funds
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Retainer instructions - Wills - For an individual
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Retainer instructions - Wills - For a couple
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Conflict of interest check
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Initial letter to client enclosing retainer agreement
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Retainer agreement - Ontario
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Scope of work - Wills
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Letter to individual client to confirm instructions
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Letter to spouse clients to confirm instructions
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If required - Advice on testamentary discretionary trusts
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Letter to client advising on testamentary discretionary trusts
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Enclosure - Benefits of testamentary discretionary trusts
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If required - Authority for wills
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Letter to client's previous lawyer with authority for wills
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Authority to client's previous lawyer to forward wills
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Time and costs estimates
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If required - Costs disclosure update and a non-engagement letter
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Letter to client updating costs disclosure
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Non-engagement letter
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General deeds, agreements, execution clauses, and statutory declarations
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Deeds and Agreements
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Deeds
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Confidentiality deed
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Deed for general use
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Deed of assignment of agreement
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Deed of gift
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Deed of guarantee
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Deed of release
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General deed of indemnity
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Library of standard clauses for deeds
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Agreements
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Agreement for general use
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Heads of agreement
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Non-disclosure agreement - Formal
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Non-disclosure agreement - Informal
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Library of standard clauses for agreements
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Execution clauses
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Execution clauses - Agreements and contracts
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Execution clauses - Deeds
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Statutory declaration
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Statutory declaration
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Standard annexure note for documents
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General deeds, agreements, execution clauses and statutory declaration
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Deeds and Agreements
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Deeds
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Confidentiality deed
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Deed for general use
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Deed of assignment of agreement
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Deed of gift
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Deed of guarantee
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Deed of release
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General deed of indemnity
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Library of standard clauses for deeds
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Agreements
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Agreement for general use
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Heads of agreement
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Non-disclosure agreement - Formal
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Non-disclosure agreement - Informal
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Library of standard clauses for agreements
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Execution clauses
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Execution clauses - Agreements and contracts
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Execution clauses - Deeds
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Statutory declaration
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Statutory declaration
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Standard annexure note for documents
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B. Will considerations and other estate planning
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Formal requirements
See also Execution of a will. The formal requirements for a document to meet to be considered a valid will are set out in ss 3–12 of the Succession Law Reform Act 1990.
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Revocation of a will
Section 15 of the Succession Law Reform Act 1990 deals with when and how a testator can revoke a will. A validly executed will following all formal requirements revokes all previous wills. A will document usually expressly provides for revocation, but regardless, s 15(b) of the Act ...
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Divorce or annulment
Under s 17(2) of the Succession Law Reform Act 1990, divorce or annulment of marriage does not revoke a will in its entirety. However, unless otherwise specified in the will, divorce or annulment revokes certain provisions within the will, including:
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Revival of a revoked will
Under s 19 of the Succession Law Reform Act 1990, a testator can revive all or part of a validly revoked will by:
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Executors
An executor is a person appointed by a will to administer a testatorʼs estate. The feminine form is executrix. An executor is also referred to as an estate trustee or a personal representative. The Succession Law Reform Act 1990 uses the term executor rather than estate trustee. However, a ...
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Burial and cremation
The executor has a common law right to possession of the deceased's body. They have control over the body and authority to arrange the deceased's burial. The estate's administrator does not have this right.
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Guardianship and decision-making responsibility for minors
It can be difficult for testators to decide whether to include a clause in their will for the appointment of a guardian of property and decision-making responsibility for minor children. Most often, the decision is not to do so. Generally following the death of the parents, children go to the ...
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Dispositions of property
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Death benefits
Death benefits are payments or entitlements that the deceased's beneficiaries or dependants may obtain from:
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Capital gains tax
Death is a taxable event and significant tax liability can arise from the testator's death. The deemed disposition rules under the Income Tax Act 1985 can trigger capital gains taxes that must be paid before the distribution of the estate to beneficiaries. For lawyers unfamiliar with these tax ...
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Estate representative's tax obligations
An estate representative is referred to as a legal representative under the Income Tax Act 1985. A legal representative is normally the executor named in the will. When the deceased is intestate, an individual can apply to the court to be named the administrator of the estate and request to be ...
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Trusts
A trust is a creation of the common law. It allows the separation of legal and beneficial ownership. The owner of the property is the party who creates the trust. They are called the settlor. In a trust the settlor's property vests in a trustee. The trustee holds the property in trust for the ...
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Equalization payment under Family Law Act 1990
Under the Family Law Act 1990 a surviving married spouse can make a property division claim against the deceased spouse's estate. The claim is based on the equalization of net family property. Section 5(2) of the Act provides that:
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Election of Surviving Spouse
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Intestacy
Intestacy describes the situation when a person dies without a valid will. A partial intestacy describes a circumstance when the testator leaves a valid will yet it only covers the distribution of some, but not all, of their assets.
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Challenges to a will
A challenge to a will questions its validity, not the fairness of its provisions. A court cannot set aside a will simply because its provisions are unfair or the testator did not leave the estate to their descendants. Only if a will or a provision in a will is contrary to the law or the claimant ...
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Notice of Objection
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Notice of Appearance - Form 75.4
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Notice of Motion for Directions
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Order in an Estates Proceeding
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Dependants’ claims
Part V of the Succession Law Reform Act 1990 provides that the deceased's dependants can claim support from the estate of the deceased. Under s 58(1) of the Act, when the deceased dies testate or intestate and fails to adequately provide for the support of their dependants, the dependants ...
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Notice of Application
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Affidavit
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Notice of Appearance
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C. The will
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Wills for individuals
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Individual will - Client 1
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Individual will - Client 2
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Wills for spouses
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Spouse will - Client 1
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Spouse will - Client 2
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Wills for blended families
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Blended families
Protecting the interests of the children of a previous relationship is a common consideration for testators in second or subsequent marriages or relationships. Regardless of how harmonious a blended family may be, problems can arise.
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Blended family will - Client 1
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Blended family will - Client 2
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Wills creating testamentary discretionary trusts
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Testamentary trusts
A testamentary trust is created by a will. The terms of a testamentary trust are included in the will and take effect when the testator dies. Section 108(1) of the Income Tax Act 1985 defines a testamentary trust as a trust that arises on and as a consequence of an individual's death.
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Will creating testamentary discretionary trust - Client 1
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Will creating testamentary discretionary trust - Client 2
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Will creating multiple testamentary discretionary trusts - Client 1
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Will creating multiple testamentary discretionary trusts - Client 2
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Library of clauses
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Assets - Asset management
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Assets - Quarantining assets from a nominated jurisdiction
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Beneficiaries - Excluding beneficiaries - Some reasons for excluding beneficiaries
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Beneficiaries - Separate fund for particular beneficiary - Clause to establish trust
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Body - Burial in reserved plot
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Body - Burial with modest funeral
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Body - Cremation
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Body - Funeral service location
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Body - Medical research purposes excluded
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Body - Medical research purposes
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Body - Organs for donation
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Clause creating a Henson disability trust
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Clause establishing disability trust with trust deed annexed - Appointing trustees
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Clause establishing disability trust with trust deed annexed - Executors as trustees
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Clause to establish disability trust - Executors as trustees
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Clause to establish disability trust - Executors to appoint trustees
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Clause to leave money or property via will to pre-existing disability trust
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Decision-making responsibility and guardianship of minor's property - Appointment when other parent has not survived
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Deemed disclaimer of an interest under this will
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Divorce - Will in contemplation of divorce
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Digital rights - Specific bequest of digital rights
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Education trust for grandchildren
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Family Law Act equalization clause
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Gift of business to employees
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Gift to spouse with reasons for children of previous marriage
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Home - Right of occupation of home
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Hotchpot - Excluding hotchpot
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Hotchpot - Including hotchpot
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Lawyer - Direction for appointment of lawyers
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Lawyer executor - Charge fees
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Life estate
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Life insurance used for debts
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Monthly payment - Establish a monthly payment not an annuity
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Option - Grant an option to purchase to a beneficiary
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Pets - Gift of pets
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Registered education savings plan
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Registered education savings plan - Wound up
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Registered retirement savings plan
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Spouse - Definition - Spouse of a person
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Testamentary trust intentions for beneficiaries
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Trustee - Separate trustee for minor beneficiary
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Library of deeds, contracts, and codicils
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Deed not to change will
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Deed not to change will in favour of mortgagee
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Mutual wills
A mutual will is a type of will that is accompanied by a binding agreement between the testators. The testators include a clause in the binding agreement that neither of them can revoke their mutual will without the other's consent. This means that neither testator can change their will after the ...
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Mutual wills - Contract to make mutual wills
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Codicils
A codicil is a document that changes or adds to a will. It allows the will to stay in place while the codicil changes or adds a specific clause to it. The codicil directly references the will and outlines the exact changes or additions being made to that will. The codicil is signed and witnessed in ...
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Codicil
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Library of attestation clauses
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Blind
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Can read but unable to write or make a mark
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Can read but unable to write
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Can write but unable to read
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Unable to read but can speak and understand English and can sign
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Unable to read or speak English but can sign
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Unable to read or write
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Unable to speak or read English or write
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Disability trust - Deed, variance, and clauses
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Henson trust
A Henson trust is a testamentary trust. It is designed to allow a disabled person to collect means-tested government benefits under, for example, the Ontario Disability Support Program, while still supporting them. It supplements the disabled beneficiary's income but ensures that the additional ...
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Qualified disability trust
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Qualified disability trust deed
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Deed of variation for qualified disability trust
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Clause creating a Henson disability trust
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Clause to leave money or property via will to pre-existing disability trust
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Clause establishing disability trust with trust deed annexed - Executors as trustees
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Clause establishing disability trust with trust deed annexed - Appointing trustees
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Clause to establish disability trust - Executors as trustees
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Clause to establish disability trust - Executors to appoint trustees
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Multi-jurisdictional estates and international wills
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Multi-jurisdictional estates
When a deceased owns assets in more than one country or province, to deal with the deceased's property in those jurisdictions, it is necessary to probate the deceased's will or letters of administration in more than one place. Probating the will is the process of having the court approve the ...
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International wills
Canada has ratified the Convention Providing a Uniform Law on the Form of an International Will (the Convention). Countries that have ratified the Convention recognize an international will that complies with the Convention as a valid will. The Convention mandates requirements that, to some extent, ...
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International will certificate
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D. Execution
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Signing the will
Under s 4 of the Succession Law Reform Act 1990, a will must be signed by:
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Letter advising client that wills are ready for signing
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Letter reminding client that wills are ready for signing
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Affidavit of Execution of Will or Codicil
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Remote signing
Remote witnessing of a will is permitted under s 4(3) of the Succession Law Reform Act. At least one of the witnesses must be a licensee of the Law Society of Ontario. All signatures must be made contemporaneously in counterpart. The identical copies signed in counterpart together constitute ...
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Rules relating to witnesses
Strict rules govern who can be a witness of a will signing and whether a will can include gifts to a witness.
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If required - Sending will to client for signing
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Sending a will to a client to be signed
A lawyer instructed to send a will to a client for execution should assist the client by describing the process. Otherwise, the will may not be properly executed and consequently not valid. The precedent Enclosure – Instructions for Signing on the matter plan can be sent to the client with the ...
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Letter to client enclosing will to sign
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Enclosure - Instructions for signing
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E. Finalizing the matter
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Storage
If the will is to be kept in safe custody, enter it into the safe custody register and place it in a trackable envelope. Never keep it in the file. A copy of the will should be provided to the testator. Including the firm’s contact details on the cover sheet or in a letter enclosing the will ...
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Revising the will
Advise testators to review their will regularly. While this may not be of great significance in the case of small estates or when the testator’s estate is to pass to their spouse and then to their issue, it is relevant in other situations. Events that trigger revising a will include a change in:
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If required - Will not signed
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Letter to client finalizing the matter when will not signed
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Letter to client finalizing the matter
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Invoice recital - Wills
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Closing the file
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File closing checklist
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Comments and suggestions for By Lawyers
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ALERTS - Nil
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Full Commentary - Powers of Attorney and Advance Directives (ON)
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Reference materials
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AI Prompts
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Electronic Signing and Remote Witnessing
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Further information
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Overview
A power of attorney is an instrument by which a person, the grantor or donor, gives another person or persons, the attorneys, the right to act on their behalf. There are three different types of powers in Ontario, provided for under two separate statutes. Each perform different functions:
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A. Getting the matter underway
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File cover sheet - Powers of attorney
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To do list - Powers of attorney and advance directives
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First steps
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Client details, verification, and source of funds
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Retainer instructions - Powers of attorney and advance directives
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Conflict of interest check
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Initial letter to client enclosing retainer agreement
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Retainer agreement - Ontario
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Scope of work - Powers of attorney and advance planning
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Time and costs estimates
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If required - Costs disclosure update and a non-engagement letter
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Letter to client updating costs disclosure
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Non-engagement letter
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General deeds, agreements, execution clauses, and statutory declarations
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Deeds and Agreements
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Deeds
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Confidentiality deed
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Deed for general use
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Deed of assignment of agreement
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Deed of gift
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Deed of guarantee
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Deed of release
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General deed of indemnity
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Library of standard clauses for deeds
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Agreements
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Agreement for general use
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Heads of agreement
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Non-disclosure agreement - Formal
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Non-disclosure agreement - Informal
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Library of standard clauses for agreements
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Amendment clause
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Confidentiality clause for defined information - All parties
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Confidentiality clause for defined information - One party
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Confidentiality clause for terms of agreement - All parties
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Confidentiality clause for terms of agreement - One party
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Costs clause
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Counterparts clause
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Dispute resolution clause
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Events beyond control clause
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Governing law and jurisdiction clause
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Interpretation clause
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No assignment clause
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Notices clause
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Severance clause
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Waiver clause
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Whole agreement clause
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Execution clauses
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Execution clauses - Agreements and contracts
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Execution clauses - Deeds
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Statutory declaration
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Statutory declaration
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Standard annexure note for documents
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B. Powers of attorney for property
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Types of powers for property
The two types of instruments that allow decisions relating to the grantor’s property to be made by an attorney are:
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Limitations and conditions
When appointing an attorney for property, the grantor determines the scope of the authority that they wish to give the attorney. A limited power of attorney allows an attorney to carry out specific tasks or act only subject to particular conditions. Limitations may restrict the power’s use to a ...
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Continuing power of attorney for property
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Capacity
Definition of capacity Anyone 18 years or older is presumed to have the capacity to enter into a contract: s 2(1) of the Act. The presumption of capacity can be relied on unless there are reasonable grounds to believe that a person is incapable: s 2(3). Anyone challenging that ...
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Compensation
Section 40 of the Substitute Decisions Act 1992 permits an attorney under a continuing power of attorney for property to be compensated. There is a statutorily prescribed fee scale, or the grantor can otherwise include a specific provision in the power of attorney. O. Reg. 26/95: General, ...
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When the continuing power commences
Generally, an attorney’s powers commence immediately after the continuing power of attorney is signed and witnessed. However, the grantor can make the commencement conditional on an event or a later specified date: s 7(7) of the Substitute Decisions Act 1992. For example, a common clause may ...
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Continuing power of attorney for property for client 1
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Continuing power of attorney for property for client 2
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Execution and witnessing
Section 10 of the Substitute Decisions Act 1992 sets out the following requirements for validly executing and witnessing a continuing power of attorney:
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Letter to client for appointment to sign documents
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Resignation, revocation, and termination
Resignation Section 11 of the Substitute Decisions Act 1992 provides that an attorney who has not yet acted under the power may resign without formality. However, if they have acted under the power, then their resignation is not effective until the attorney provides a copy of their resignation ...
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Revocation, resignation, and termination
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Revocation
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Revocation of power of attorney
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Revocation of appointment of attorney
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Letter to attorney giving notice of revocation
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Letter to notifiable party giving notice of revocation
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Resignation
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Letter to interested party giving notice of resignation
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If required - Acting for the attorney
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Letter to grantor or donor notifying that attorney has resigned
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Termination
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Letter to notifiable party giving notice of termination
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General power of attorney for property
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General power of attorney for property
General powers of attorney are largely regulated by common law. The Powers of Attorney Act 1990 has only three sections. The Act allows the attorney to, on behalf of the grantor, do anything that the grantor can lawfully have an attorney do, subject to any conditions and restrictions contained in ...
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Capacity
Definition of capacity Anyone 18 years or older is presumed to have the capacity to enter into a contract: s 2(1) of the Act. The presumption of capacity can be relied on unless there are reasonable grounds to believe that a person is incapable: s 2(3). Anyone challenging that ...
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Execution and witnessing
Section 10 of the Substitute Decisions Act 1992 sets out the following requirements for validly executing and witnessing a continuing power of attorney:
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General power of attorney for client 1
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General power of attorney for client 2
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Letter to client for appointment to sign documents
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Revocation and resignation
A general power of attorney is terminated when:
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Revocation and resignation
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Revocation
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Revocation of power of attorney
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Revocation of appointment of attorney
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Letter to attorney giving notice of revocation
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Letter to notifiable party giving notice of revocation
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Resignation
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Letter to interested party giving notice of resignation
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If required - Acting for the attorney
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Letter to grantor or donor notifying that attorney has resigned
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Library of clauses for powers of attorney
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Access to will
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Compensation for attorney
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Compensation for attorney excluded
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Compensation for attorney greater than prescribed fee scale
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Corporation appointing attorney to conduct the business of the corporation
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Corporation appointing attorney to execute documents
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Discharge of mortgage
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Mortgage
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Purchase of real estate - General
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Purchase of real estate - Specific
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Sale of real estate
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If required - Sending documents to client for signing
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Letter to client enclosing documents to sign
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Enclosure - Instructions for signing
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Transacting with a purported attorney
When transacting with a purported attorney, the following precautions should be taken:
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When a person without an attorney for property loses the capacity to manage their property
If no attorney has been appointed by a person who loses the capacity to manage their property, any person, including a family member, may apply under s 22 of the Substitute Decisions Act 1992 to become their guardian for property. The Office of the Public Guardian and Trustee may also apply. ...
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C. Power of attorney for personal care
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Power of attorney for personal care
Under s 46 of the Substitute Decisions Act 1992 the grantor may execute a power of attorney for personal care, authorizing the attorneys to make personal care decisions on the grantor’s behalf if the grantor is incapable of doing so for themselves. Although the Act does not expressly provide ...
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Capacity
Definition of capacity Anyone 18 years or older is presumed to have the capacity to enter into a contract: s 2(1) of the Act. The presumption of capacity can be relied on unless there are reasonable grounds to believe that a person is incapable: s 2(3). Anyone challenging that ...
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Requirements for attorneys
Age An attorney for personal care must be at least 16 years old: s 44 of the Substitute Decisions Act 1992.
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Limitations and conditions
When appointing an attorney for property, the grantor determines the scope of the authority that they wish to give the attorney. A limited power of attorney allows an attorney to carry out specific tasks or act only subject to particular conditions. Limitations may restrict the power’s use to a ...
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Compensation
Section 40 of the Substitute Decisions Act 1992 permits an attorney under a continuing power of attorney for property to be compensated. There is a statutorily prescribed fee scale, or the grantor can otherwise include a specific provision in the power of attorney. O. Reg. 26/95: General, ...
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Power of attorney for personal care for client 1
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Power of attorney for personal care for client 2
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Library of clauses - Power of attorney for personal care
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End of life intervention
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Provision of private information
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Execution and witnessing
Section 10 of the Substitute Decisions Act 1992 sets out the following requirements for validly executing and witnessing a continuing power of attorney:
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Letter to client for appointment to sign documents
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If required - Sending documents to client for signing
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Letter to client enclosing documents to sign
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Enclosure - Instructions for signing
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Resignation, revocation, and termination
Resignation Section 11 of the Substitute Decisions Act 1992 provides that an attorney who has not yet acted under the power may resign without formality. However, if they have acted under the power, then their resignation is not effective until the attorney provides a copy of their resignation ...
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Revocation, resignation, and termination
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Revocation
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Revocation of power of attorney
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Revocation of appointment of attorney
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Letter to attorney giving notice of revocation
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Letter to notifiable party giving notice of revocation
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Resignation
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Letter to interested party giving notice of resignation
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If required - Acting for the attorney
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Letter to grantor or donor notifying that attorney has resigned
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Termination
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Letter to notifiable party giving notice of termination
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D. Advance directives
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Advance directives
An advance directive or advance medical directive, sometimes also called a living will, is different from a power of attorney for personal care, but they may be used in conjunction with each other. The term living will has no legal meaning in Ontario. Unlike a power of attorney, an advance ...
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Advance directive for client 1
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Advance directive for client 2
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Letter to client for appointment to sign documents
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If required - Sending documents to client for signing
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Letter to client enclosing documents to sign
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Enclosure - Instructions for signing
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E. Finalizing the matter
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Letter to client with reminder that documents are ready for signing
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Notification
When instruments are completed, clients typically require assistance in communicating the fact they have made or revoked a power of attorney to relevant people or institutions. The attorney is the most obvious party to notify, but there may be others. For a continuing power of attorney for ...
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Letter to attorney notifying when appointed
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Attorney's acceptance of appointment for client 1
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Attorney's acceptance of appointment for client 2
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Letter to interested party notifying when attorney appointed
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Finalizing the matter
Notification When instruments are completed, clients typically require assistance in communicating the fact they have made or revoked a power of attorney to relevant people or institutions.
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Letter to client finalizing the matter
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Invoice recital - Powers of attorney
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Closing the file
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File closing checklist
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Comments and suggestions for By Lawyers
