The following information is intended as a general guideline only.  For advice, please contact your lawyer.

A note about funeral arrangements
It is the duty of executor to ensure that funeral arrangements are followed according to the instructions in the Will but since the Will might not be read until after the funeral, it is important that these wishes be communicated to the executor, and to surviving family members, beforehand. These could include such matters as organ donation, place of burial, service preferences, disposition of remains, etc.

Acting as an Estate Trustee - A Checklist
If you are acting as an estate trustee (formerly "executor"), you are responsible for administering the estate of a deceased person. If that person named you in his or her Will as an estate trustee and if the deceased person's estate must be "probated", your appointment as estate trustee is approved by the Court and you are granted a Certificate of Appointment of Estate Trustee with a Will. The process of submitting a deceased person's Will to Court and obtaining the certificate is referred to as "probating the Will". If a person is appointed as estate trustee where a deceased person did not leave a Will, the Court grants a Certificate of Appointment of Estate Trustee without a Will.

This page is a list of duties normally performed by a solicitor in assisting an estate trustee to obtain probate and administer the estate. It also provides a list of estate trustee duties which the estate trustee may carry out personally or through a professional which he or she hires such as a lawyer or an accountant. The lists provided in this brochure cover most of the duties to be performed; however, the lists are not exhaustive as requirements will vary depending upon the amount, nature, and complexity of the assets, the age and residency of the beneficiaries, and the knowledge and skill of the estate trustee. 

Administering the Estate Immediate Matters

  • Make proper funeral and burial arrangements, and pay funeral expenses.
  • Make a thorough search for a Will.
  • If no Will, advise solicitor to apply for Certificate of Appointment of Estate Trustee Without a Will.
  • Supply solicitor with information required for above application.
  • If prior year income tax returns were not completed, file (or arranged to have filed) income tax returns for year of death and for all prior years which are due but were not filed at the date of death.
  • Determine, locate and notify beneficiaries of their interest.
  • Determine, secure and protect assets.
  • Dispose of all perishables.
  • Open estate bank account.
  • Review insurance coverage and insure estate assets against fire and other perils.
  • Make provision for the immediate needs of deceased's spouse and any other dependants of the deceased.
  • Collect income generated by the estate assets or payable to the deceased.
  • Pay bills, mortgage payments, insurance premiums, credit cards.
  • Re-direct mail.
  • Cancel health insurance coverage, driver's license, cable, telephone, club memberships, subscriptions, credit cards and obtain any refunds where appropriate.

 

Allowable Investments Within A Testamentary Trust.
The estate executor may be responsible for investment of assets within the testamentary trust. To that end every executor should have an investment plan that reasonably assesses risk and return. The executor may, at his or her discretion, hire a professional investment advisor to assist in the development and execution of the investment plan. The executor must maintain authority and responsibility for the overall investment plan and must ensure that the investment plan is followed and revised as necessary. Under the Trustee Act, an executor is not liable for investment losses if the conduct of the executor that led to the loss conformed to a plan or strategy for the investment comprising reasonable assessments of risk and return, that a prudent investor could adopt under comparable circumstances. 


The Trust’s funds must be invested as directed by the investment powers spelled out in the Trust’s deed. Executors in Ontario usually have one of the following four investment powers:

  1. The executor must make investments in accordance with the Trustee Act. The funds of these trusts must be invested in the way set out in the Trustee Act as amended on June 29, 2001.
  2. The funds of the Trust must be invested prudently but investments are not limited to investments authorized by law for executors. The Trustee Act provides a useful guide to making prudent investments.
  3. The funds of the Trust are limited as to kinds of investments allowed, as laid out in the Trust document the executor is constrained by these restrictions in his or her investment choices even if other investments might provide a higher return.
  4. The investment powers are not specified in the Trust document. In these cases the executor must follow the requirements of the Trustee Act.

 

Assets:
Cash and Securities: Withdraw cash balances from bank and trust accounts, cancel accounts Take possession of securities and register any in the estate trustee’s name, review securities to determine which should be held and which should be sold. Sell securities as determined, to pay tax and other liabilities, as well as to provide cash for any bequests. Review investments regularly for appropriateness while the estate continues.

Real Estate: Convert to cash, convey or sell residence(s) and any other real estate property, i.e. the summer cottage, farm and commercial or apartment building(s). If bequeathed as a gift, transfer the property into the beneficiary’s name or as directed.

Mortgages:
Arrange to collect mortgage payments. Arrange for continuing management of assets or sale.

Insurance and Annuities: Submit necessary claim forms and supporting documents to life insurance companies and collect proceeds of life insurance and annuity policies. Arrange for cancellation of insurance on assets as they are conveyed or sold.

Personal Goods: Deliver to the heirs all goods and estate assets that have been bequeathed. Arrange for the sale of the balance of the personal possessions of the deceased.

 

Case Law regarding Precatory Memoranda
In Ontario the courts have treated memoranda not incorporated by reference (i.e. not specifically and clearly identified in a Will) as an expression of the wishes of a testator to his trustee and not intended to be binding. (Ontario High Court cases of Re Blow and Re Rudaczyk). 
Of historical interest, the 1965 English Court of Appeals case of Re Londonderry’s Settlement is often taken as authority regarding the non-disclosure of precatory documents. 

In another English case, a beneficiary sought disclosure of trust documents and letters of wishes. The court held that in the matter of the precatory documents it had discretion to refuse disclose where it would not be in the interests of all beneficiaries or in absence of any compelling argument by the beneficiary. (Re Rabaitti’s Settlements, Court of Jersey) In Australia (Court of Appeal, New South Wales, Australia, Harrington nominees Pty LTD., 1992) the Appeal Court cited the confidentiality owed to the testator and refused to order disclosure of letters of wishes.

Changing Your Will
Wills need to be updated as the circumstances of your life change. Any event or development in your personal or financial condition can impact your Will. 


Some examples include:

  1. changes to provincial laws affecting estates,
  2. moving to another province,
  3. the death of a beneficiary,
  4. a significant change in personal finances.

Get into the habit of reviewing your Will periodically - say every 2 to 3 years - to ensure it is still applicable to your current situation. As well your legal advisor can notify you of changes in legislation that may affect your Will.

 

Codicils
A codicil is an addition to a Will that is intended to make some variation (usually slight) to a Will. It does not revoke the Will that it varies and is meant only as a codicil or variation to a Will rather than a complete new Will. Since it is part of the Will, the codicil must meet the formal requirements of a Will. Thus, a codicil must be witnessed by two witnesses in the presence of the testator when executed. If it is going to be holographic, it must be written entirely in the handwriting of the testator and signed by the testator.

 

Common Disasters
You may wish your Will to contain a Common Disaster Clause. This provides that your spouse will inherit only if he or she outlives you for a specified period (usually 30 days). This will avoid having to deal with the same assets twice in the event that you and your spouse die at approximately the same time. A common disaster clause can also name alternate beneficiaries in the event your immediate family was to perish in the same accident.

 

Conventional Wills

Also known as the English Law Will, it is the most common form of Will and is recognized by all the provinces. (in Ontario, under the Succession Law Reform Act, in Quebec, the Civil Code of Quebec, in all other provinces the provincial Wills Act applies) In Quebec this type of Will is known as the ’Will made in the presence of witnesses’. 
 

The following requirements apply to the Conventional Will:

  • The Will must be in writing,
  • The testator (person who makes the will) must be mentally capable and cannot be a minor,
  • The Will must be signed at its end by the testator,
  • The Will must be signed by 2 witnesses, present at the same time, who attest that the document is the Will of the testator and bears is or her signature,
  • The witnesses to the Will must be of legal age (exceptions, s. 11 of the SLRA) and cannot be beneficiaries of the Will or spouse of the testator.
  • It is generally followed practice to ensure the Will is dated.
  • In Quebec the testator and each witness must initial each page of the Will. (art. 728)

 

 

Delegation of A Trustees Investment Authority.
In the course of developing an investment plan, every trustee with such a responsibility should make a reasonable assessment of risk and return. This may lead a trustee to seek out professional investment advice with respect to the trust’s investment options. However, the trustee is ultimately responsible for the decisions that arise in the asset selection and the management and administration of the investment plan. According to the Trustee Act, a trustee is not liable for losses to trust property providing the loss arises from an investment which is made in accordance with an investment plan, taking into account reasonable assessments of risk and return, that a prudent investor could adopt under comparable circumstances. 

Before delegating investment authorities to an investment advisor (agent), a trustee must: 

Prepare a written investment plan, 

Draw up a contract with the agent stipulating the powers and responsibilities of the agent. The agent must agree to follow the objectives of the investment plan and report to the trustee regularly. 

Trustees must review the reports of the agent and confirm that the objectives of the investment plan are continuing to be met. Trustees are responsible for replacing the agent if the plan is not being followed.

 

 

Discovery of estate assets and liabilities:

  1. Take steps to ensure continuance of operations of any ongoing business affairs of the deceased, arranging for interim management if necessary.
  2. Prepare a detailed inventory of the deceased’s assets and liabilities, including cash, securities, jewelry, real estate and other valuables such as contents of safety deposit boxes.
  3. Notify all relevant financial institutions about the death and obtain statements about cash balances on deposit and loans outstanding.
  4. Locate all insurance policies and notify insurers about the death.
  5. Apply for Canada Pension Plan benefits.
  6. Review insurance coverage on real estate, automobiles and other estate assets. Increase insurance where necessary.
  7. Have the estate lawyer search the title to all real estate in which the deceased had an interest.
  8. Determine whether to make a contribution to the deceased’s RRSP within 60 days of the year of death. This matter may require advise from a tax consultant .
  9. Determine the value of any additional real estate, such as cottage property, farm, commercial, or investment property. Check leases, mortgages and taxes. Provide for continuing management and insurance of investment properties.

 

 

Distributions to beneficiaries:
Make distributions to beneficiaries, in keeping with the instructions of the Will. Withhold sufficient amounts to provide for potential tax liabilities or other obligations. 

Prepare and submit a full accounting of estate administration to beneficiaries and to The Ontario Supreme Court of Justice where required. 

Manage the estate shares of underage beneficiaries until they are of an age to inherit.

 

 

Division of Assets Under Intestate Succession:
The laws of each province are specific regarding the division of property when a person dies without a Will. Most provinces designate a spouse’s share - a portion of the estate that will automatically devolve to the surviving partner. Other family members - children for example - are provided for only if the value of the estate exceeds the spouse’s share.

 

 

Duties of an Estate Executor:

The Executor is the person specifically appointed to administer the Will and to ensure your final wishes are respected. It is someone you consider trustworthy and responsible and of a similar mind with respect to the disposition of your estate. It can be a spouse, often a close friend or family member, however if the estate is complicated it may be a professional - a Lawyer, Chartered Accountant or Corporate Trustee.

Following is a list of the various duties of an estate executor. Not all estates need each of these steps in their administration, however this list gives a good indication of the nature of an executor’s responsibilities and the time, efforts and personal attributes required of an estate executor.

 

 

Duties of the Executor typically include:

  1. make final funeral arrangements in accordance with family wishes,
  2. probate the Will,
  3. gather assets and determine and pay the debts of the estate, including funeral expenses,
  4. file outstanding tax returns,
  5. obtain clearance certificate from Revenue Canada that taxes are paid, 
  6.  distribute the assets of the estate in accordance with the provisions of the Will,
  7. manage the estate shares of minor beneficiaries until they are of age to inherit.

 

Estate Administration with Testamentary Trusts:

A testamentary trust is any trust that is created through the provisions of a Will and comes into effect only when the testator dies. The assets of the trust are stipulated in the Will as are the beneficiaries, the length of time the assets will be held in trust and the terms by which they are to be administered. Such trusts provide a means of providing for named beneficiaries and have certain significant tax advantages due to preferential treatment under the Income Tax Act as well as other non-tax estate planning benefits. The terms of the trust usually provide for the payment of income and/or capital to the beneficiaries. 

The executor or trustee named in the Will is usually - but not necessarily - the trustee of the testamentary trust. As such he or she is the legal owner of the properties within the trust and has full authority over the management of its assets and may make discretionary allocations among beneficiaries of the trust unless otherwise stipulated in the Will. The executor is obligated to make decisions regarding the investment of the trust’s assets and file tax returns on behalf of the trust. 

The most common uses of testamentary trusts are to provide for minor inheritors - children and grandchildren - and as a means of providing a benefit to a spouse usually over a spouse’s lifetime. 

The trustee manages the assets in the trust for the benefit of the child/children and distributes the income and capital at the trustee’s discretion. The full assets of the trust may devolve to the beneficiary when an age of responsibility has been attained or as stipulated in the Will. 

Specifically, the responsibilities of the executor with respect to the administration of the estate assets through a testamentary trust may include:

  1. Set up the trust fund(s) as directed by the Will. 
  2. Maintain accounts and records for trusts, and issue regular statements to beneficiaries. 
  3. Make income payments to beneficiaries. Exercise discretion—where allowed under the terms of the Will—to meet the particular needs of beneficiaries. 
  4.  Provide continuous investment management of securities, mutual funds, real estate and mortgage investments. 
  5.  In the case of the continuation of a private business, serve as a director or officer, arrange for competent management and provide supervision. 
  6.  Maintain residences, cottage, farm or other property, including the supervision of repairs and insurance. 
  7. Be prepared to account regularly to the court (where necessary) on the administration of the trust. 
  8. Provide tax advice to beneficiaries and, if necessary, assist beneficiaries with income tax returns. 
  9.  Make final distribution of estate on death of life tenant(s) or upon beneficiaries reaching age of entitlement. Final income tax certificate of clearance from the CCRA is necessary before the estate can be wound up. 
  10.  Consult the estate lawyer regularly throughout this process.

 

Estate Executors Compensation:

Although family members and close friends may perform the services of an executor or estate trustee without compensation, the courts have traditionally allowed such persons as well as trust companies to charge for their services. In fact, most trust companies that agree to act as an executor or estate trustee request that the testator execute a fee agreement and incorporate the agreement by reference into the Will.

The courts in estate matters have developed a scale of charges so that executors can determine with some precision the amount of compensation they are likely to receive. This scale, based on the value of property in the estate, has been in use since 1975.

It allows the executor a fee of:

2.5% on capital receipts (i.e. where an executor gathers in capital assets of the estate, such as real property, the compensation on a $100,000 property would be $2,500.)

 2.5% on capital disbursements (i.e. where the executor distributes capital property to beneficiaries; the compensation on the transfer of a $100,000 property would be $2,500.)

2.5% on revenue receipts (i.e. where the executor receives income, such as bank interest)

Where the estate is not distributed immediately, an annual care and management fee of 2/5 of 1% on the gross value of the estate (i.e. where the gross value of the estate is $100,000, the annual compensation would be $400).

This guideline is generally followed but courts will establish what a fair and reasonable figure is by looking at the following five factors:

1) the size of the estate, 2) the actual care and responsibility involved, 3) the time occupied in performing the duties, 4) the skill and ability shown; and 5) the success resulting from the administration.

 

 

Factors to Consider when Investing:
Trustees bound by the investment powers of The Trustee Act must consider the following when making any investment of trust funds: 
General economic conditions; 

The possible effects of inflation or deflation; 

The tax consequences of the investment decisions or strategies; 

How each investment decision conforms to the overall portfolio strategy; 

The expected total return from income and growth of capital; 

Requirements of the trust for liquidity, regularity of income and preservation or appreciation of capital. 

An asset’s special relationship or special value, if any, to the purposes of the trust or to its beneficiaries. 

These criteria are useful even to Trusts not required to follow the Trustee Act.

 

Final administration of the estate:

  1. Upon advice of the lawyer, apply to the court for Letters of Probate.
  2. Pay from the estate assets the necessary probate tax
  3. The executor can now deal with the assets, settle the liabilities, and distribute to beneficiaries the residue of the estate in accordance with the provisions of the Will:

 

 

Final Matters:

  • Convert investments and other assets to cash and deposit to estate account or, if estate balance is substantial and final distribution will be delayed, invest balance in interest-earning investments pending final distribution to beneficiaries.
  • Re-register assets in estate's name, if applicable.
  • Prepare transfer/deed for conveyance of real property, if required by the will.
  • Arrange rollover of RRSP or RRIF to the deceased's spouse if appropriate.
  • Settle to pay all legitimate claims against the estate.
  • Apply for any benefits payable on death including the C.P.P. death benefit, life insurance proceeds, death benefits from pension plans or annuities, and deposit to estate account
  • File a T-3 Trust Return, if appropriate.
  • Obtain clearance certificates from Canada Customs and Revenue Agency (CCRA, formerly Revenue Canada) with respect to the terminal income tax return and any subsequent T-3 Trust Returns.
  • Prepare and maintain estate accounts for approval by the beneficiaries or examination by the court if a passing of accounts is appropriate or required.
  • Prepare and have beneficiaries sign releases prior to distributing funds.
  • If no will, distribute assets according to rules for intestate succession.
  • Prepare cheques and pay shares to beneficiaries.
  • Advise beneficiaries regarding inclusion of income from estate in income tax, if appropriate
  • Close the estate account.

 

 

Funeral Arrangements:
It is the duty of executor to ensure that funeral arrangements are followed according to the instructions in your Will but since the Will might not be read until after the funeral you should make your wishes known beforehand, both to your executor and to family members. These could include such matters as organ donation, place of burial, service preferences, disposition of remains, etc.

 

General Rules:

The laws that apply to the making of a Will vary from province to province. All provinces recognize the conventional form of Will ; the laws of Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick and Newfoundland allow for a holograph Will. The law in Quebec provides for a notarial form of Will. The laws that apply in any case depend upon where the Will was drafted and in which province the deceased (testator) was living at the time of death.

 

 

Guardians:

Your Will can name a guardian or guardians to take custody of minor or dependent children who would otherwise be uncared-for in the event of your death. 

Some considerations for the selection of guardian(s) include:

  • are they of a similar mind as you on matters of child-rearing?
  • do they live close by or will your children be required to move from their present community?
  • do they have the means, financially and emotionally, to be adequate caregivers?
  • what are their religious beliefs?
  • are they trustworthy? consider that they will have access to your children’s inheritances.

Your Will may provide compensation for named guardians.

 

 

Holograph Wills:
A holograph Will is a Will completely handwritten by the testator. It is subject to no other formal requirement ; the signatures or attestations of witnesses are not required for the Will to be legal (section 7, Wills Act of Alberta). Of those provinces that accept a holograph Will, some require the testator’s signature, others do not. The entire Will must be in the handwriting of the testator ; a typed Will with testator’s signature is not accepted as a legal holograph Will. 

Holograph Wills are valid in Ontario, Alberta, New Brunswick, Newfoundland, Quebec, Manitoba and Saskatchewan. In Nova Scotia and P.E.I the use of holograph Wills are not permitted, although the law in P.E.I. was amended to permit a "substantial compliance" provision (Sec. 70 of the Act) to allow the court to recognize a holograph document if it is signed and judged to represent the testamentary intentions of the deceased. In British Columbia holograph Wills are not allowed, but the law will uphold a valid holograph Will made outside of B.C insofar as it applies to moveable property in that province. (sec. 40 of the Wills Act)

 

 

Interim Matters:

  • Prepare inventory of original assets including safety deposit box listing, real estate, monies on deposit at financial institutions, personalty, life insurance, any interest in an estate or trust and any other investments such as a mortgage.
  • Arrange valuation of assets where necessary.
  • Advertise for creditors and prepare inventory of debts.
  • Ascertain any debts to family members and locate evidence regarding loan balance.
  • Consider any claims or potential claims against the estate and obtain legal advice if necessary.
  • Set aside reserve funds for estimated debts, taxes (including potential taxable capital gains on property such as a cottage), and estate trustee's compensation.
  • Prepare interim release and make interim distribution to beneficiaries if appropriate; where a clearance certificate has not yet been obtained and there are no outstanding prior year income tax returns, interim distributions should never exceed one-half the estate value; if there are outstanding prior year income tax returns or the estate trustee is not familiar with the affairs of the deceased, no interim distributions should be made until a clearance certificate with respect to the terminal return has been obtained.

 

International Wills:

A testator with assets in more than one country may consider an international Will. In 1973, the Convention Providing a Uniform Law on the Form of an International Will established rules for the acceptance of an international form of valid Will. All jurisdictions adopting the convention recognize standard formalities regarding the drafting, witnessing and administrative authorizations associated with these Wills. Not all provinces accept this type of will and its use is not widespread. In Ontario sec. 42 of the SLRA deals with international Wills. 

The following citations indicate the references to international Wills in provincial law : 

Alberta Wills Act, R.S.A. 2000, c. W-12, ss. 44- 54 (50,420- 50,434) ; 

Manitoba The Wills Act, R.S.M. 1988, c. W150, ss. 48- 58 (58,700-58,745) ; 
New Brunswick’s International Wills Act, S.N.B. 1997, c. I-12.4, ss. 1 and 2 (63,830 et seq.) ; 

Newfoundland Wills Act, R.S.N. 1990, c. W-10., ss. 30-43,(66,692-66,980) 

Nova Scotia An Act Respecting International Wills, S.N.S. 2000, c. 7, effective June 8, 2000, except Convention, effective on proclamation, ss. 1 et seq.(69,191) ; 

Ontario Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 42 (78,291) ; 
Prince Edward Island Probate Act, R.S.P.E.I. 1988, c. P-21, ss. 120-130 (82,233-82,245) ; 

Saskatchewan The Wills Act, 1996, S.S. 1996, c. W-14.1, ss. 41-51(91,210-91,220).

 

Liabilities:

Debts: Advertise for creditors in newspapers. Check all claims and pay legitimate debts. Cancel all credit and charge cards. Some credit cards have a death benefit feature (the estate trustee should investigate this possibility). As funds become available, discharge any bank or private loans, mortgage payable, or business liabilities.

Income Tax: In addition to determining regular taxable income relative to the year of death, all the deceased’s capital gains or losses as of the date of death also must be determined. If the surviving spouse or spouse trust receives the entire estate, it is possible that no capital gains tax will be payable until that spouse dies.

Prepare an income tax return for the portion of the year to the date of death, and for any previously unpaid period. Prepare a rights and things return—and any other income tax return—as appropriate. Pay taxes and obtain a certificate of tax clearance from the CCRA. Advise beneficiaries of taxable income, if any, allocated to them for which they are liable for income tax. 

As tax at death is a complicated matter in many estates, the executor should seek professional tax advice when proceeding with the preparation and filing of estate income tax.

Other Duties or Taxes: If duties or taxes in respect of foreign jurisdictions are owed, instruct an estate lawyer to prepare and file returns. Settle and pay any balances owing and obtain discharges. If the deceased died in another country or has property in another country, contact the Canadian consulate based in that country on how to proceed.

 

Living Wills:

A Living Will (also known more formally as an Advance Health Care Directive) provides instructions about the nature of medical treatment you wish to receive (or not receive) in the event you become incapable of communicating your own wishes. In cases where you might not have specific health care instructions, your Living Will can designate another person (a proxy) who will make decisions on your behalf if you are unable to do so yourself. 

Only certain provinces - Alberta, British Columbia, Manitoba, Newfoundland, Ontario, Prince Edward Island and Saskatchewan - have laws making health care directives binding. Quebec and Nova Scotia permit health care proxies but not living wills or advance health care directives ; however court decisions suggest that living wills may be legally enforceable even in those provinces that do not have legislation authorizing them. (The Ontario Court of Appeal in Malette v. Shulman (1990), 72 O.R. 2d 417 and Flemming v. Reid (1991), 4 O.R. 3d 74) 

The medical condition of the individual concerned will bear heavily on the wording of a living will ; vague language regarding the future circumstances of health and quality of care should be avoided. Instructions directing euthanasia are not enforceable. In all cases, a living will should be drawn up under the direction of a family physician.

 

 

Make Charitable Giving a Win-Win Situation:

For charitably minded individuals, a little planning will mean your charitable gifts can both help your favourite cause and provide tax relief for you and your estate. Here are some tips on how to make your donations do double duty:

  • Make a charitable bequest: Leave a set amount or some of your assets to a charity in your Will. Your estate gets a tax credit that reduces your estate's taxes for the year of your death and the year before.
  • Buy life insurance in your charity's name: Buy life insurance and transfer ownership and the beneficiary designation to your favourite charity. You earn a charitable donation for the premiums you pay each year during your lifetime, and your charity receives a lump sum cash payment after your death.
  • Buy life insurance in your own name and name the charity as the beneficiary: The life insurance proceeds will generate a tax credit that can then be used to offset taxes due on your death.
  • Set-up a charitable annuity: This strategy can help improve your retirement income and provide significant tax relief.

 

 

Members of the Armed Forces:
Provincial legislation provides for a special kind of Will in the case of members of the Canadian Armed Forces or in the case of a mariner or seaman in the course of a voyage. Similar to a conventional Will, there is no requirement for witnesses to be present or for either testator or witnesses to sign the document. There is no age requirement for the testator, so long as they were members of the armed forces or employed as mariners at the time the Will was written. A Will of this type is valid after the person leaves the service or the sea voyage is over. 
In Ontario the SLRA, section 5 provides inclusion for any member of a naval, land or air force or sailor when on sea voyage, and allows that the Will may be signed by someone other than the testator in the testator’s presence. 

Section 5 of the Wills Act of Manitoba provides for a similar use of these Wills in that province. 

The legislation in Ontario and Manitoba provides for certain rules to establish whether a person is on active service. As well, see section 31 of the National Defense Act as it applies to the conditions and agreements under which persons are considered to be on active service. 

In Nova Scotia, subsection 9 of the Nova Scotia Wills Act states any soldier or member of the armed forces "being in actual military service or any mariner or seaman being at sea, may dispose of his personal property in the manner in which that soldier, mariner or seaman might have done before the twenty-seventh day of March, 1840". 

In Newfoundland, section 3 of The Wills Act makes provision for the Wills of volunteers, which includes members of the Newfoundland Regiment or the Newfoundland Royal Naval Reserve.

 

Memorandums:

A memorandum (sometimes called a Memorandum of Gifts) is an unattested (unwitnessed) document attached to the Will that describes personal items of property intended as gifts to individuals. To be valid the memorandum must have existed prior to the making of the Will, must be signed and dated prior to the date on the Will and the Will must contain clear and specific reference to the memorandum document. A memorandum to a Will cannot be altered except by a codicil or a new Will.

 

Mutual Wills:

Spouses will sometimes seek to execute Wills together, drawn on identical terms, each testator being the beneficiary to the other’s estate, or having beneficiaries in common.. Often these Wills carry an agreement, explicit or implicit, that the terms of the Will not be changed without the consent of the other party. Such wills are sometimes referred to as "mirror wills". 

A issue to be aware of with these situations is that the terms of a mutual Will can sometimes impact a most basic, fundamental principal of the law of Wills, that being that a Will is always revocable (given the testator is of sound mind). In the case of mutual Wills however, where there is a clear agreement on behalf of the spouses not to revoke, a constructive trust may be imposed on the surviving spouse if he or she executes a new Will after the death of the partner. A constructive trust occurs ".... when the law imposes upon a party an obligation to hold specific property for another. The person obligated becomes by force of law a constructive trustee towards the person to whom he owes performance of the obligation." (Lord Denning in Hussey v Palmer (1972) 3 All E.R. 70 (CA) ) 

In the case of University of Manitoba v. Sanderson Estate (1998), 20 E.T.R. (2d) 148 (B.C.C.A.), a husband and wife had prepared mutual Wills that included an agreement not to revoke, bequeathing the residue of their estate to the University of Manitoba. After the wife died the husband made a new Will which named different individual beneficiaries. When the husband died the University of Manitoba sought a Declaration that the husband’s second Will was invalid and that the executors held the residue of the estate as constructive trustees for the sole benefit of the university. Upon appeal the court agreed, finding that, in light of the agreement not to revoke, the second Will constituted a fraud upon the deceased.

 

 

Notarial Wills - Quebec:
In the province of Quebec a notary drafts a notarial Will in accordance with articles 716 and 717 of the CCQ. Usually more expensive than a "will made in the presence of witnesses" it has added elements of security not to be found in the other types of Will. The notary ensures the legal formalities have been respected making the document more difficult to contest in court. Notarial Wills do not require probate. 

The notary reads the Will before the testator and one witness (two witnesses in special cases) all of whom sign the Will in each others presence. In Quebec the Chambre des notaries maintains a register of all notarial Wills so they are readily found if the notary pre-deceases the testator or is otherwise unavailable at the testator’s death. (similarly, the Barreau du Québec maintains a register for all holograph Wills and Wills made in the presence of witnesses which have been drafted by lawyers). 

Articles 719-722 of the CCQ provide for the situation where a person is blind, deaf, deaf-mute, incapable of signing, or unable to express him or herself aloud. 

Articles 723 and 725 require that the notary must not be the spouse of the testator, related to the testator or connected with the testator by marriage. Witnesses must be of legal age and cannot be in the employ of the notary, unless a notary themselves. 

Article 716 requires that the Will be dated and that the place of drafting be indicated on the Will.

 

 

Obligations of an Investment Advisor:
The Act requires that an agent employed by a trustee to invest trust money must do so according to a standard of care and diligence as set out in the legislation. Where an agent has breached his or her duty and a loss to the trust has resulted, the loss can be recovered from the agent. 

Under the Act, the duties of an agent are: 

To conform to the standard of care of a person in the business of investing the money of others; 

To comply with the terms of the agreement between the agent and the trustee, and; 

To act in accordance with the plan for investment of trust property. 

An agent to whom investment-making authority has been delegated cannot in turn delegate that authority to another person.

 

Personal Effects and Bequests:

Bequests to individuals or organizations can be specified in your Will. These include donations to schools, charitable organizations, churches, or to individuals. Legacies of this sort are paid out of the estate first before the disbursement to named beneficiaries from remainder - or residue - of your estate. 

If you wish to leave personal articles to particular individuals a Memoranda of Gifts should be attached to your Will. The memoranda should specify the article and the intended recipient and should be signed and dated prior to the date of your Will. 

In addition to Memoranda of Gifts or specific bequests you can choose to make gifts in the form of cash. If so keep in mind the value of the gift is likely to decrease over time due to the affects of inflation and the cost of living.

 

Personal Effects and Bequests:

Bequests to individuals or organizations can be specified in your Will. These include donations to schools, charitable organizations, churches, or to individuals. Legacies of this sort are paid out of the estate first before the disbursement to named beneficiaries from remainder - or residue - of your estate. 

If you wish to leave personal articles to particular individuals a Memoranda of Gifts should be attached to your Will. The memoranda should specify the article and the intended recipient and should be signed and dated prior to the date of your Will. 

In addition to Memoranda of Gifts or specific bequests you can choose to make gifts in the form of cash. If so keep in mind the value of the gift is likely to decrease over time due to the affects of inflation and the cost of living.

 

 

Planning Your Will:

After you have considered the full extent of your estate and have decided upon how you wish the assets to be distributed at your death, you need to meet with a lawyer to draft your Will. The Checklist and Plan paragraphs at the end of this will help to focus on the elements of your Will to ensure that nothing has been overlooked. 

Before you meet with your lawyer you should prepare the following information:

  • full name and address of executor(s)
  • name and address of guardian(s) if any,
  • name and address of trustee(s) if any,
  • name and address of beneficiaries,
  • list of beneficiaries named in RSPs, RRIFs, pension plans and insurance policies,

Please note that your lawyer will want a complete list of your assets and where they can be found.

 

 

Precatory Memorandums:
A precatory memorandum (also known as a Memorandum of Wishes) is a document that is not specifically identified or referenced in the Will and is intended to convey only the wishes of the testator to his executor regarding discretionary matters of the disbursement of the estate. A precatory memorandum is usually not considered legally binding. 

Case Law regarding Precatory Memoranda:
In Ontario the courts have treated memoranda not incorporated by reference (i.e. not specifically and clearly identified in a Will) as an expression of the wishes of a testator to his trustee and not intended to be binding. (Ontario High Court cases of Re Blow and Re Rudaczyk). 
Of historical interest, the 1965 English Court of Appeals case of Re Londonderry’s Settlement is often taken as authority regarding the non-disclosure of precatory documents. 

In another English case, a beneficiary sought disclosure of trust documents and letters of wishes. The court held that in the matter of the precatory documents it had discretion to refuse disclose where it would not be in the interests of all beneficiaries or in absence of any compelling argument by the beneficiary. (Re Rabaitti’s Settlements, Court of Jersey) In Australia (Court of Appeal, New South Wales, Australia, Harrington nominees Pty LTD., 1992) the Appeal Court cited the confidentiality owed to the testator and refused to order disclosure of letters of wishes.

 

Probate Fees and Multiple Wills:

In Canada, with the victory of the Estate of Philip Granovsky v Ontario (1998) the use of Multiple Wills may be a viable way for estate planners to significantly reduce the probate fees that apply upon the disbursement of a deceased’s estate. 

When you die your executor has legal authority to deal with your estate however probate is usually required to successfully transfer certain of the assets (real estate, publicly traded shares, financial investments) registered in your name. Letters probate (Certificate of Appointment of Estate Trustees with a Will) provides proof to other financial institutions and advisors - as well as the land registry office - that your executor is recognized by the courts and is authorized to act on behalf of your estate. The fees (Estate Administration Tax in Ontario) attached to probate can be substantial. They vary from province to province but in Ontario they are calculated as follows: $5.00 per $1,000.00 up to the 1st $50,000.00 and $15.00 per each $1,000.00 to the full value of the assets of the estate. 

In the Granovsky case the deceased had prepared two wills; the first specified all those assets of his estate which were probatable - i.e. for which those third parties (financial institutions, transfer agents etc.) usually require authentication of the Will and executor before releasing assets, and a secondary Will that included the rest of the estate and for which probate is not considered necessary (assets in joint accounts, life insurance policies, shares in a private company, RRSP & RRIF holdings that have a named beneficiary). In this case the latter represented some $25 million in shares of a private company. 

In the case Ontario argued that probate fees applied to all of the assets of the estate regardless of the number of Wills. The Court disagreed ruling that the executor in fact is under no obligation to probate and that ’limited probate’ is possible under the law. The Granovsky estate was spared the probate taxes that otherwise would be applied to the $25 million in shares - approximately $375,000. 

The province has indicated it will appeal although it has taken no action to date (mid-2000) and legal opinion is that the decision was sound and will stand. If you are considering this strategy you should be aware that the use of multiple Wills for avoidance of probate tax has been validated only by the court in Ontario under Ontario statutes. See your legal advisor regarding any more recent court developments and how they might apply to your estate plans.

 

Province/Territory Spouse's Share:

Alberta $40,000 British Columbia $65,000 Manitoba $50,000 Northwest Territories $50,000 Nova Scotia $50,000 Ontario $200,000 Prince Edward Island $50,000 Saskatchewan $100,000 

If a person dies without a will the estate would be distributed as follows:

  • if spouse and no children, then all to spouse
  • if spouse and 1 child, the spouse’s share is distributed and the remainder is split 50/50
  • if spouse and more than 1 child, the spouse’s share is assigned and the remainder split 1/3 to spouse and 2/3 to all living children equally
  • if no spouse, then all to children equally
  • if no spouse or children then the estate goes to parents equally or all to the surviving parent
  • If there is no spouse, children or parents, the estate goes to siblings equally
  • if no siblings then estate goes to nieces and nephews equally.

 

 

Provisions for Businesses:
A special provision of your Will can provide instructions for how your interest in a business may be managed or disposed of in the event of your death.

 

 

Residue or Remainder of Estate:
The residue of the estate is what is left over after all testamentary expenses, debt payments and liabilities, bequests and gifts of personal articles. All of the aforementioned items are paid out of the estate before the residue is distributed to your beneficiaries.

 

 

Role of Executor:
The Executor (or Trustee) is the person specifically appointed to administer the Will and to ensure your final wishes are respected. It is someone you consider trustworthy and responsible and of a similar mind with respect to the disposition of your estate. It is often a spouse or close friend or family member, however if the estate is complicated it may be a professional - a Lawyer, Chartered Accountant or Corporate Trustee.

 

Solicitor's Duties:

  • Review the Succession Law Reform Act with the estate trustee and advise as to the distribution of estate required by law.
  • Outline the duties of the solicitor to the estate trustee.
  • Advise the estate trustee on the scope of their duties in connection with the administration of the estate.
  • Advise the estate trustee regarding funeral arrangements and any special instructions regarding donation of the body or organs.
  • Review the assets of the estate.
  • Prepare the statement of the original assets.
  • Prepare and file the application for a Certificate of Appointment of Estate Trustee.
  • Transmit the deceased's property into the estate trustee's name.
  • Prepare documents for registration of securities.
  • If instructed by estate trustee, arrange to advertise for creditors.
  • Receive a list of debts and advise the estate trustee as to payment of the deceased's debts.
  • Advise on potential claims under provincial family law legislation.
  • Advise regarding the settlement of claims against the estate.
  • Perform corporate services for any company of the deceased.
  • Assist the estate trustee in making proper decisions.
  • Prepare documents to transfer property to the beneficiaries.
  • Assist in the preparation of accounts.
  • Pass accounts, if needed.
  • Prepare beneficiary releases.
  • Search executions, if needed.
  • Prepare applications for paying money into court, where necessary.
  • Discuss income tax returns and who will complete them.
  • Represent estate trustee in court to obtain advice in the administration of the estate, to interpret the will, to contest questionable claims, to settle claims under the family law legislation.
  • Prepare application to court permitting payments to be made to a foreign beneficiary who is resident in a country designated in regulations, if necessary.

 

Testamentary Trusts:

A testamentary trust is any trust that is created through the provisions of your Will and comes into effect only when you die. The assets of the trust are stipulated in the Will as are the beneficiaries, the length of time the assets will be held in trust and the terms by which they are to be administered. Such trusts provide a means of providing for named beneficiaries and have certain significant tax advantages due to preferential treatment under the Income Tax Act as well as other non-tax estate planning benefits. The terms of the trust usually provide for the payment of income and/or capital to the beneficiaries. 

The executor or trustee named in your Will is usually - but not necessarily - the trustee of the testamentary trust. As such he or she is the legal owner of the properties within the trust and has full authority over the management of its assets and may make discretionary allocations among beneficiaries of the trust unless otherwise stipulated in your Will. The trustee is obligated to make decisions regarding the investment of the trust’s assets and file tax returns on behalf of the trust. 

The tax advantages of testamentary trusts arise largely from the fact that such trusts are considered ’persons’ for tax purposes and as such the income earned therein is taxed at the graduated rate according to the Income Tax Act and not at the considerably higher rates that would apply if the gain were added to the beneficiaries’ taxable income. 

The most common uses of testamentary trusts are to provide for minor inheritors - children and grandchildren - and as a means of providing a benefit to a spouse usually over a spouse’s lifetime. 

In the case of children or grandchildren, some of the advantages of the trust are : 

a) to provide for those with disabilities, for up to as long as the lifetime of the beneficiary, b) to assist a child viewed as spendthrift or otherwise irresponsible, c) to provide for educational assistance, d) to provide tax benefit for minors who would benefit from the particular tax advantages with a testamentary trust. 

The trustee manages the assets in the trust for the benefit of the child/children and distributes the income and capital at the trustee’s discretion. The full assets of the trust may devolve to the beneficiary when an age of responsibility has been attained or as stipulated in the Will. 

In the case of a spousal trust assets are left in trust usually for the lifetime of the spouse. At the spouse’s death the assets pass to other beneficiaries as specified in your Will (usually children). Income is paid out over the course of the spouse’s lifetime according to the terms of the trust that may also provide for access to capital assets at the spouse’s request or the discretion of the trustee. A spousal trust may be useful in cases where full and immediate access to capital is not required or can be deferred in favour of tax savings. As well the assets of a spousal trust are protected from claims by the spouse’s relatives, future partners or other creditors. 

As well testamentary trusts are useful in providing continued access and control for surviving family members to a seasonal property - a cottage for example, or in the case of a family-operated business.

 

 

The Trustee Act:

In 1999 and 2001, significant changes were made to The Trustee Act, allowing for wider options when it comes to the investment of trust assets and permitting delegation of trust investment decisions under certain circumstances. 

Prior to July 1, 1999, The Trustee Act specified a list of investments that trustees were required to follow. Since the amendment to the Act, trustees are no longer constrained by a pre-set list, but can make any investment that a prudent investor might make, including investments in mutual funds, pooled funds and segregated funds offered by insurance companies. 

Under the new regulations, "a trustee must exercise the care, skill, diligence and judgment that a prudent investor would exercise in making investments". 

The provinces that currently use some form of the prudent investor concept are: Alberta, Saskatchewan, Manitoba, Ontario, New Brunswick, Nova Scotia, Prince Edward Island, Newfoundland and Labrador, Yukon, Northwest Territories and Nunavut. 

In addition to the wording of the revised Act, trustees are bound by the instructions in the trust deed; the trust’s funds must be invested in strict accordance with the powers granted the trustee, regardless of what may be allowed by the Act. 

In the province of Ontario, trustee investment powers fall into one of the following categories:

  1. The trust document directs the trustee to be bound by the Trustee Act. The funds of these trusts must be invested according to the way set out in the Trustee Act as amended on June 29, 2001.
  2. The trust provides for investment choices beyond just what authorized by law for trustees. Trustees must nevertheless be guided by the prudent investment standard. 
  3. The funds of the trust are explicitly limited to certain kinds of investments by the trust deed. These trusts are bound to follow the directions set out in the trust even if other investments, allowable by law, might provide a higher return. 
  4. The power to invest is not stipulated in the trust; in these cases the trustee’s investment powers fall under the provisions of the amended Act.

 

 

Upon the death of the testator, the executor will:...

  1. Locate the last Will and testament of the deceased.
  2. If necessary, make appropriate funeral arrangements. While this is a duty usually attended to by the immediate family, the executor should be aware of and be responsible for ensuring that particular instructions of the deceased regarding funeral, disposition of remains, organ donation etc. are followed.
  3. Consult with a lawyer. This may be the lawyer who drew up the Will; otherwise it may be necessary for the executor to retain a lawyer.
  4. Communicate with all persons (including charities and institutions) that are entitled to share in the proceeds of the estate. This includes notice of the estate trustee’s application for a certificate of appointment as estate trustee.

 

 

Using Software Programs or Pre-Printed Forms:
Some people make wills with the help of software programs or preprinted forms, but lawyers warn that some of these aids are questionable. American-produced packages, for example, may not take account of Canadian legislation, much less make allowances for distinctions in provincial probate laws. 

When you consider the full value of your estate it simply makes good sense to write your Will with the guidance of a professional advisor.

 

 

What is a Will?
A Will is a written and (usually) signed statement bearing the signatures of two witnesses, neither of which can be beneficiaries or spouse and which provides instructions for the disposition of your property after you die. A Holograph Will is one that is completely handwritten and in some provinces is recognized as legal without either signature or witnesses. Residents of Quebec have the option of a Notary Will made by notaries granted Will-making powers by the Civil Code of Quebec. 

If you sign a Will and then get married, your Will is considered revoked in most provinces unless the Will is updated to reflect ’contemplation’ of the marriage. 

If you obtain a Court Ordered Separation or Divorce, benefits to your former spouse will be canceled in most provinces unless the Will otherwise instructs. Similarly if a former spouse is appointed executor this appointment is also annulled unless otherwise provided for in the Will.

 

What is an Executor?

An estate executor – or, in Ontario, an estate trustee — is the person or party named in the last Will and testament of the deceased and who has the primary responsibility for the administration of the deceased’s estate.
The executor’s role is to act as the alter ego of the deceased; his or her fundamental job is to wind up the affairs of the deceased and distribute the estate to entitled beneficiaries. The duties of the executor can be onerous, and one should give consideration to the demands of time and effort before agreeing to undertake the responsibilities that come with this role.

 

Who Should Be My Executor?

There are several things to take into account when pondering the question of whom you should choose as executor:

  • Your executor should be someone you consider trustworthy and is in agreement with you as to the details of the disbursement of your estate.
  • He or she should be capable of carrying out your wishes as estate executor. If your estate is complex you may consider a professional executor; a trust company, chartered accountant or legal advisor.
  • If you anticipate controversy or conflict among beneficiaries you may choose someone other than a family member (or beneficiary) to ensure impartiality.
  • Your executor should of course be someone likely to outlive you. Consider one who is a nearby resident.
  • One named in a Will as executor is under no obligation to serve, so discuss your wishes with your executor beforehand.
  • Ensure he or she is willing to perform the duties required of them and that they fully understand the intentions of your Will, and make known your wishes regarding burial arrangements.

Appoint an alternate executor in case the primary named executor is unable or unwilling to perform those duties at the time of your death.

 

Who Should Be Your Executor?

There are several things to take into account when pondering the question of whom you should choose as executor:

  • Your executor should be someone you consider trustworthy. He or she should know and be in agreement with your wishes regarding bequests to your heirs.
  • He or she should be capable of performing the duties required as estate executor. If your estate is complex you may consider a professional executor - a trust company, chartered accountant or legal advisor.
  • If you anticipate controversy or conflict among beneficiaries you may choose someone other than a family member (or beneficiary) to ensure impartiality.
  • Your executor should of course be someone likely to outlive you.
  • Your executor should be someone who is a nearby resident so that duties may be performed without undue inconvenience and delay.
  • One named in a Will as executor is under no obligation to serve. Make sure you have discussed your wishes with your executor beforehand; that he or she understands the duties required of them and is comfortable with the performance of those duties.
  • Ensure he or she knows your wishes regarding burial arrangements.
  • Appoint an alternate executor in case the primary named executor is unable or unwilling to perform those duties at the time of your death.

 

 

Why Have A Will?

"A man who dies without a will has lawyers for his heirs." Anon. 

A Will determines who controls your estate after your death. A Will identifies your beneficiaries and ensures that they will share in your estate according to your final wishes. A Will can also minimize the costs and expenses that can accrue if you die Intestate (without a Will). 

If you die without a valid Will your estate will be divided according to the laws of your province that govern the distribution of estate property. 

If you have no Will and no living family members your estate vests in the Provincial Government. 

If you die without a Will but leaving relatives, the law will apportion your assets among your immediate family. This will entail:

  1. appointment of administrator of your estate,
  2. identification of those among your family to whom your assets will devolve and what their respective portions will be and
  3. establishing the age at which any minor beneficiaries might inherit

The court-appointed administrator acts as the estate executor and has the power to deal with all debts and assets of the deceased. Until an administrator has been appointed no action will be taken on behalf of your estate. The administrator will pay the debts and expenses arising from the disposition of the estate before any distribution to heirs.

 

Will Plan Checklist:

Consider the following as you go through the planning process of your Will. As you will discover it can be helpful if this is your first attempt at drawing up a Will or if you are reviewing an existing Will.

  • Have you decided on an executor and alternate executor(s)
  • Have you discussed your wishes with your executor? Is he/she aware of and comfortable with the duties required of them as executor of your estate?
  • Does your executor know where your Will is kept?
  • Have you discussed funeral arrangements with your executor?
  • Are there any recent additions to your immediate family - children or grandchildren?
  • Have you prepared a memorandum outlining the distribution of your personal effects?
  • Have you decided on bequests or gifts to family members or other individuals?
  • Have you prepared a memorandum specifying gifts of personal articles?
  • Have you named a beneficiary of registered assets - RRSP, RRIF, pensions?
  • Have you named a guardian for any minor children?
  • Does your Will have a Common Disasters Clause?
  • Are there special considerations to be reflected in the writing of your Will? (bankruptcy, pending divorce, children from a previous marriage , etc.)
  • Are you aware of the provincial Family Law Act and how it might apply to your estate?

The following questions apply as well to those with existing Wills. You may wish to review your Will with your legal advisor if you feel changes may be necessary.

  • Are your executors/trustees still appropriate?
  • Has a spouse or any beneficiary died since your last Will was created?
  • Are there any new family members - children, grandchildren or other - since your last Will?
  • Have you gotten married, divorced or separated since your Will was created?
  • Do you wish to add or remove any beneficiaries?
  • Do you wish to change the terms regarding provisions to any of the beneficiaries?
  • Has your net worth significantly increased or decreased since your last Will?
  • Have you moved to a different province since your last Will?
  • Have you acquired significant new assets, property or commercial, since your last Will?

 

Will Planning Guide Introduction:

Although no one would dispute its importance, the creation and maintenance of a legal signed Will is frequently overlooked. 

The following is intended to provide an general knowledge of the purpose and nature of a Will and some of the legal, financial and personal issues to be considered upon its creation. After reading you may feel you are better able to begin the drafting of your own Will with your personal legal advisor. 

It is vital that your Will be created as part of a comprehensive personal Estate Plan, made in consideration of your present financial situation as well as your present and future goals. This will ensure that all aspects of your estate are disposed of and all beneficiaries are recognized according to your wishes.

 

Your Will Plan:

The following form will help you to organize the details of your estate and the division of your assets at the time of your death. Make sure all sections are fully considered.

  • Province of Residence:
  • Executor/Trustee:
  • Alternates:
  • Guardian:
  • Alternate:
  • Legacies:
  • Cash:
  • Registered Assets:
  • (RSPs, RRIFs, Pensions)
  • Other
  • Personal Property Residue:
  • Distributions to:
  • (e.g. spouse, children)
  • Testamentary Trusts:
  • Common Disaster:
  • Other:

 


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