Often, married spouses would want to make their Wills together. What are the key points they should keep in mind when doing so?
Mirror vs. Mutual Wills
In a Mirror Will, an individual gives real estate, cash, or other assets to the surviving spouse, to be used in any way that the spouse pleases. This means that the surviving spouse may make a new Will upon the other spouse’s death.
In contrast, in a Mutual Will, the spouses agree that they will not change their own Will upon their partner’s death. This means that the surviving spouse may need to follow any restrictions that the deceased spouse placed on how the estate is to be used.
According to case law, in the event that there is no written agreement that the Wills between spouses are Mutual Wills, the Courts will likely treat them as Mirror Wills.
Family Law Act
Under the Family Law Act (FLA), the surviving spouse is entitled to choose between his/her entitlements under the Will or under the FLA. The surviving spouse cannot choose both the Will and the FLA entitlements, unless the Will explicitly allow for this double dip.
Under FLA, the surviving spouse is entitled to half of the difference in net family property between the two spouses. Basically, it’s intended to measure each spouse’s increase in net worth during marriage (for more details including how this is calculated, please consult your Family or Estates lawyer).
In addition, this legislation gives mandatory possessory rights to the surviving spouse regarding the matrimonial home.
In many cases, if there is a big difference between the spouse’s increase in net worth during marriage, then FLA entitlements may be more favourable for the surviving spouse. It’s good to keep this in mind when considering your Will.
Exclusion from Community of Property/Net Family Property
As mentioned above, upon the death of a spouse or the dissolution of marriage, each spouse is entitled to Net Family Property (NFP) (in Ontario), or Community of Property as it’s referred in other Canadian provinces (same concept, just different names).
So if you are worried that any gifts you give to your child may be taken by their spouse after divorce, worry not. According to S.4(2) 1. of FLA, any gifts or inheritance that is given to one spouse after marriage is excluded from the Net Family Property, meaning that the other spouse would not have rights towards it upon marriage breakdown. In most Wills, this point is reiterated again in a standard clause.
An important note is that any gifts to one spouse must clearly state that it’s meant for one spouse only and be excluded from NFP. Any gifts that is meant for the “family” or “family as a whole” would likely be interpreted as forming part of the NFP.
What happens if one spouse receives inheritance before marriage? Unfortunately, if you did not make a Will in contemplation of future marriage, then the inheritance before marriage is treated like any other pre-marriage asset. The value of the gift/inheritance itself at the date of marriage would be excluded from NFP. However, the rise in value of the gift throughout the marriage would be included in the NFP.
Jointly Owned Assets
Usually, if an asset is jointly owned by both spouses, then each spouse either takes title/ownership as Joint Tenants or Tenants in Common. The most striking difference is the Right of Survivorship.
If you both took title as Joint Tenants, then the surviving spouse would be entitled to 100% of the asset upon the passing away of the other spouse. For example, if you both own a house as Joint Tenants, then after one passes away, the entire house would be passed down to the surviving spouse, to do as he/she pleases.
In contrast, if asset is owned by Tenants in Common, then each spouse would only have a certain percentage to the asset. So if you both own 50% of a house as Tenants in Common, then upon one’s death, the surviving spouse would only be entitled to 50% ownership interests in the house. The other 50% would become part of the deceased spouse’s estate and pass down in accordance with his/her Will instructions.
If, prior to making the Will, you did not specify whether you and your spouse take title as Joint Tenants or Tenants in Common, then you may so state in your Will.
Conflict of Interest
As some may know from experience, there are many areas where spouses can develop disagreements when drafting their Wills together.
Spouses must keep in mind that when they recruit the same lawyer to draft their Wills, then:
- The lawyer cannot keep any information confidential from any party. For instance, if Joe and Mary did their Wills with the same lawyer, and then later Joe tells the lawyer to change his Will without telling Mary, the lawyer cannot do so.
- If there is a conflict or disagreement that the spouses cannot resolve, then the lawyer cannot continue to act for both of them. Let’s say Joe want to make Mutual Wills but Mary insist on Mirror Wills, then the lawyer must withdraw from acting for both of them.
Conflict of interest may become especially apparent, if one or both spouses have children from a previous marriage. If a disagreement cannot be resolved, then it may be more ideal for each spouse to have their own Wills & Estates lawyer.
As apparent from this article, drafting Joint Wills come with its host of legal considerations and concerns. It’s important to work with your representative and make informed, important decisions on the basis of sufficient legal knowledge.
This article is only meant to give general legal information. For legal advice on your specific Wills & Estates case, please consult a legal professional.