Introduction

Often, married spouses would want to make their Wills together. What are the key points they should keep in mind when doing so?

middle aged couple

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.

 

Conclusion

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. 

 

Yi Dan (Sabrina) Ding 
Principal Lawyer 
Varity Law Pro. Corp. 
Tel: 416-477-5439 
Fax: 1888-620-4752 
Email: sabrina@varitylaw.ca
Address: 95 Mural St, Unit 600
Richmond Hill, ON, L4B 3G2
www.varitylaw.ca

Many people are unaware of the major benefits of making a Will, or the difference between buying a standard Will template as opposed to working closely with a lawyer to draft a tailored Will.

 

This article summarizes several out of many advantages of recruiting a lawyer to construct your Will.

old person concerned

 

Unnecessary Delays and Expenses if You Don’t Have a Will

The appointment of an Estate Trustee is crucial in distributing your assets in a smooth and efficient way. When you make a Will, you would choose a person to be this Estate Trustee. This person is usually a trusted family member or a friend, and this person can also be a beneficiary to the Will.

 

With a Will, the Estate Trustee may apply for a certificate of appointment with ease. Without a Will, there could be major confusion regarding who should become the Estate Trustee, especially if more than one person is competing for this position. This will likely lead to unnecessary delays and complications. Before an Estate Trustee is appointed, many types of assets would just be sitting there, unable to be distributed.

 

This is especially emotional draining if family members don’t have enough money to make funeral arrangements, and they cannot get access to estate money. Again, this is because without a Will, it’d likely take more time for an Estate Trustee to be appointed and more time to figure out the intentions of the deceased regarding how to distribute the estate.

 

Furthermore, if you don’t have a Will and passes away with assets that still have debts, such as a house with an existing mortgage, then the lenders would typically require the debts to be paid out before the house can be passed on to your beneficiaries. Sometimes, your estate may not have enough liquidated assets to pay off the mortgage, and the bank may take away your house and sell it in exchange for the mortgage. However, if you have a Will, you can choose to have the house pass on to your beneficiaries with the existing debts attached. Then, your beneficiaries may negotiate with the mortgagors to amend the mortgage terms (as ownership has changed) and continue to make monthly mortgage payments.

 

Intestate

When you passes away without setting a Will (“intestate”), then Part II of the Succession Law Reform Act (SLRA) would govern how your assets would be passed down.

 

Under this section, your married spouse would often get the lion’s share of the assets. The spouse would receive the “preferential share” of the estate, which is currently set at $200,000.00 as per Ontario Regulation 54/95 (1). This means that even if you have children, this $200 k would still go to the spouse. Now, if your net asset is less than $200,000.00, then the entire net asset would go to the spouse.

After receiving the $200 k, the spouse is further entitled to the following:

  • If there’s only one surviving child, then the spouse and child would each get 50% of the leftover assets;
  • If there are two children or more, then the spouse would get 1/3 of the leftover assets, and the 2/3 would be equally distributed among the children.

 

So, if you do not want the assets to be divided this way, it is wise to create a Will specifying how the assets should be distributed.

 

Gift Over – per stripes or per capita

When drafting a Will, it’s important to anticipate certain situations and make decisions in case they arise. A common anticipation is the unfortunate situation where your child passes away before you do.

 

In this case, you can distribute your assets in one of two ways. You can divide the assets per capita. Let’s say you have three children and one unfortunately passes away before you do. Then your assets, which were meant to split 3 ways between your 3 children, will now be split 2 ways between the 2 surviving children.

 

Or, you can divide the assets per stripes. Using the same example, let’s say you have 3 children and the child Sam unfortunately passes away before you do. You are still going to divide the assets 3 ways, with Sam’s 1/3 share going to his children equally.

 

Without a Will, the assets you are leaving to your children will automatically be divided per stripes according to s. 47(1)(2) of SLRA.

 

Estate Administration Tax

In Ontario, the lucky people who inherit assets do not need to pay tax on it. However, there is still Estate Administration Tax (ETA) which would be paid by the money in the estate. Subject to certain exceptions, the Estate Trustee would pay this tax as below:

  • For the first $50,000.00 of the estate — $5.00 per $1000.00 of estate value
  • For all estate value in excess of $50,000.00 — $15 per $1000.00 of estate value

 

A Wills & Estates lawyer would be familiar with the exceptions to ETA. In situations where there are many exceptions, it’s best to draft two Wills – one with assets subject to ETA and one with assets not subject to ETA. This makes the assets nice and clean for the adjudicating judge. As well, it may result in a significant amount of tax money saved, allowing more estate to be distributed to the beneficiaries.

 

Trusts


Often times, parents would to leave behind assets to their children but are afraid that they’d blow it all in one year… or even in a couple of weeks? Or the fear is that the children would spend it on a fun but wasteful trip across Europe rather than on their education or careers.

 

In those cases, parents may set up Trusts in their Wills to dictate how the money left to their children should be spent. For example, parents may decide that only a certain amount of money may be released to their children per year, to ensure they don’t spend all the money at once and having nothing left for the future.

 

A Wills & Estates lawyer can present various Trust options and properly draft them in the Will(s).

 

Power of Attorney

Another anticipated situation is when you become unconscious and/or loses the ability to make rational decisions. Often, you would want trusted family members to make decisions on your behalf in those situations.

 

When you still have a clear mind, you can decide who would make those decisions by creating Powers of Attorneys.  Under a general Continuing Power of Attorney, the assigned attorney may make any decisions that the grantor could make, except to make a Will.

 

There are two main types of power of attorneys. The power of attorney for property allows the attorney to make all decisions regarding the grantor’s property, including real estate property, assets held in a safety deposit box, bank accounts at financial institutions, etc.

 

The power of attorney for personal care allows the attorney to make decisions regarding nutrition, shelter, clothing, hygiene, safety, and health care on behalf of the grantor.

 

Of course, if you believe that this power is too broad, then you can instruct the Wills lawyer to draft restrictions. You may restrict the Power of Attorney’s decision-making powers to certain type of properties. For instance, you can dictate that the attorney may only give instructions regarding your real estate property.

 

Or, you can restrict the Power of Authority’s authority in time. Commonly, the power of attorney is set to not begin until the grantor becomes mentally incapable of making decisions.

 

Things may get troublesome if you don’t have Power of Attorneys in place and you became incapable of making rational decisions. In that situation, a family member, close friend, or someone else in your life may apply to the Court to become your Power of Attorney. However, if it’s unclear who is suitable to become your Power of Attorney, and there are more than one person competing for this position, things will likely get messy.

 

Also, if the Court determines there is no suitable person to fulfill this role, it may appoint a government official through the Office of the Public Guardian and Trustee.

 

Thus, to have more certainty, it’s more ideal to have Power of Attorneys in place.

 

Conclusion

In addition to those considerations, there are many other areas in Wills & Estates that are best handled by a Wills lawyer, such as foreign assets, corporate shares, leaving assets to adopted children, etc. Having a knowledgeable lawyer walk you through this process will help you better execute your wishes and avoid any unnecessary complications in the future.

 

This article is only meant to give general legal information. For legal advice on your specific Wills & Estates case, please consult a legal professional. 

 

Yi Dan (Sabrina) Ding 
Principal Lawyer 
Varity Law Pro. Corp. 
Tel: 416-477-5439 
Fax: 1888-620-4752 
Email: sabrina@varitylaw.ca
Address: 95 Mural St, Unit 600
Richmond Hill, ON, L4B 3G2
www.varitylaw.ca