wills

Every adult should write a Last Will and Testament. It names key appointments, like your Executor and guardians for your children. And also describes the distribution of your estate after your death. Dying without a Will means that Provincial law will effectively write your Will for you. A Last Will and Testament is not written once in a lifetime, or just before you die. Every adult should write their Will and then update it throughout their life as their circumstances change.

All about Trusts – how to include a Trust in your Will

There are many different varieties of Trust, and this can become confusing to anybody not familiar with the relationship between Trusts and Wills. In this article we will give an overview of Trusts, what they mean, how they work, and which types of trusts can be incorporated into your Will. At LegalWills.ca we support a number of different types of trusts, but certainly not all of them. It is also important to be certain when reading about trusts that you are reading Canadian material. Resources from the United States are very different, and much of the US information is not applicable to Canadians with Canadian assets.

Trusts
Credit: 123rf

What exactly is a Trust?

A trust is made up of three components. There is a “Grantor” (or “Settlor” or “Trustor”) who describes the parameters of the trust. There is a “Trustee” who manages the trust once it is set up, and then there is a “Beneficiary” of the trust – the person who benefits from the trust being in place. The key point is that by making the Trustee manage the contents of the trust on behalf of the beneficiary, there is more control over the contents of the trust. The beneficiary does not control the trust themselves.

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A Government of Canada Will Kit – Does it exist?

Every Canadian adult should have a Will in place. It is a document that should be written as you turn 18 or 19, and should be updated throughout your life as your circumstances change. If we know that everybody should have a Will, it’s a reasonable question: is there a Government of Canada Will Kit that is made available to every Canadian? And if so, how do I get one?

The short answer is: “No, there is no Government of Canada Will kit”. This article explains why there isn’t, and what other options may be available to you.

Government of Canada Will Kit
Credit: 123rf

What is a Will kit?

To understand a Will kit, you have to understand what constitutes a legal Last Will and Testament. The requirements for a legal Will are that it must be in writing, on paper, and signed in the presence of two witnesses. There is no requirement to write a Will with a lawyer, or to have it stamped or registered. It simply needs to be a piece of paper that clearly states that the document is your Last Will and Testament. Ideally, it should include an Executor appointment, but at a minimum it should explain who will be receiving what parts of your “estate” (all of your assets, possessions, and financial assets).

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How can you set Executor fees?

At LegalWills.ca we have made a decision to not allow you to set Executor fees in your Will. There is a good reason for this, and it does require some understanding of Executor fees and how they are calculated.

What are Executor Fees?

Within your Will you name an Executor. This person has the responsibility to gather your assets, secure them, and then distribute your assets to the beneficiaries according to the instructions in your Will. Together with these broad tasks, the Executor also has to arrange your funeral, file your final year taxes, apply to probate, and work with every business that you have interacted with to close down your accounts. In addition, there is now the concept of a Digital Executor. This person is responsible for working with all of your online accounts and digital assets to make sure that they are either closed down, memorialized, or transferred to a beneficiary.

It is a big task that can take many hours of work, over weeks and months, and even occasionally years. It is therefore only reasonable that an Executor should receive some compensation for all of this work that must be done to administer your estate.

Setting Executor fees in your Will
Credit: 123rf

What are the different types of Executor?

If you have a Will, then your Executor is appointed by you, in your Will. You can name a single person to take on the role or “joint Executors”. Within the Will you usually also name at least one backup or “alternate Executor”. Most of the people who prepare their Will at LegalWills.ca appoint a friend or family member as their Executor. There is absolutely no problem with your chosen Executor being a beneficiary.

In fact, it is very common for the Executor to be the main beneficiary, particularly when this person is your spouse. It can make things go quite smoothly when your spouse is transferring assets to their own name, when they are named as Executor of your Will. It is also common to then name children as a backup Executor (sometimes appointed as joint alternate Executors). Not all services allow joint Executors, but at LegalWills.ca you can name up to three first choice joint Executors, and up to three alternates who can either step into the role one by one, or who can work jointly when the first choice is unable or unwilling to serve.

Appointing an alternate Executor at LegalWills.ca
Naming an Alternate Executor at LegalWills.ca

When naming a friend or family member as an Executor, they must be an adult in your Province, but there are no other particular qualifications. They can have a criminal record, and they can have filed for bankruptcy. Just make sure that you are choosing an appropriate person.

Another option for your Executor is a professional Executor. This can be a bank, law firm, or trust company. Every major bank offers Executor fees, not all lawyers do, but some lawyers specialize in this part of the process and may even prepare a Will for a very low fee if they can be named as Executor. The catch with this is that some professional Executors set their own fees that are over and above the Executor fees set by the courts.

How are Executor fees calculated?

Executor fees are generally established on a Provincial level by the courts. They are calculated as a percentage of the estate according to a range based on the “size and complexity” of the estate. Keep in mind that these fees are over and above any costs that may be incurred through the process of estate administration.

In Ontario, Executor fees are usually calculated as 2.5% of all assets gathered, plus 2.5% of all assets disbursed to beneficiaries. In other words about 5 percent of the estate.

In BC, the level of Executor compensation is a little more vague, but is “up to” five percent depending on a variety of factors including:

  • the magnitude of the estate;
  • the care and responsibility involved;
  • the time occupied;
  • the skill and ability displayed; and
  • the success achieved in the final results.

In Alberta, the Executor compensation rates are subject to a more complicated calculation. Firstly, a calculation is made based on the size of the estate:

On the first $250,000.00 of capital: 3% – 5%
On the next $250,000.00 of capital: 2% – 4%
On the balance: 0.5% – 3%

There are further Executor fees based on revenues coming into the estate while the estate is being managed, as well as additional fees based on the assets being managed. So in general, it is a range that the Executor must pick from, and the level of compensation must then be validated by the courts.

Can you set your own level of Executor fees?

The fees quoted above are usually applicable only if the Will “is silent regarding Executor compensation”. In other words, you are legally permitted to set your own level of Executor compensation in your Will.

Of course, this will likely only happen if you have named a friend or family member as the Executor. If you name Royal Bank of Canada (RBC Royal Trust) as the Executor in your Will, they will likely require certain clauses to be inserted into the Will. You will not be able to name a professional Executor and set your own fees. Often, the fees charged by professional Executors may include additional administrative fees over and above the court approved levels of compensation.

Why doesn’t LegalWills.ca allow users to set Executor compensation?

In general the courts establish the level of Executor compensation based on the size and complexity of the estate. You have absolutely no idea what the size and complexity of your own estate will be.

You may feel that today, you have a good sense of the size of your estate, but keep in mind that your Will is not coming into effect today. It is some time in the hopefully distant future. You also have no idea how complicated your estate administration will be.

Supposing you are hit by a bus, and the bus company are held liable. But the bus company is holding off on paying any settlement. Your estate is going to get both larger in size, and significantly more complicated. There may be claims made against your estate that you are currently unaware of, because usually you have no idea how you are going to die.

You want to avoid a situation where you have stated in your Will that your Executor will receive $10,000 for their work, and your Executor realizes that this is going to be much more work than $10,000 worth. So they simply refuse to take on the role. You could end up with a situation where nobody wants the job because the level of compensation is too low for the work involved, particularly if the Will comes into effect 30 years from now when $10,000 is worth $1,000 in today’s money!

Can an Executor choose not to receive fees?

The flip side to this is naming a friend or family member who works through the Executor tasks and simply chooses not to be compensated. This is actually quite common, and in many countries, expected. Some family members may feel that it is unreasonable for the Executor to receive 5% of the value of a home simply for selling it through a real estate agent (who also receives a percentage of the home). In this case, the Executor will not need to do much work at all to earn $100,000 as a percentage of the sale of a home in downtown Toronto or Vancouver.

Can you leave a bequest to an Executor?

The Executor of your Will can be a beneficiary of the Will. This is very common when a spouse is named as both the Executor of the Will and also the main beneficiary. There are pros and cons to naming your spouse as the Executor of your Will, and we have covered this in a separate post.

However, don’t muddle the two. If you have left $10,000 to your brother, and also appointed your brother as the Executor, you should not assume that this bequest is in lieu of the Executor compensation. The two things should be kept quite separate. Your brother has every right to choose not to serve as Executor, but this should not mean forgoing any bequest given to them in the Will.

A Guide to Modern Wills: The Digital Will, Electronic Wills, and Online Wills

The law pertaining to Wills has been in place for almost 200 years. Over that time, very little has changed in the requirements to create a legal Last Will and Testament. The law has always stated that a Will must be written on paper and signed in ink in the presence of two witnesses, who must also sign the document in ink in the presence of each other. But over the last 20 years we have seen the emergence of online Will services, Digital Wills, and Electronic Wills. The definitions of these modern Wills have been evolving, and cause a great deal of confusion. In this article we would like to explain the differences between these documents.

Modern Wills
Credit: 123rf

Summary

An Online Will

A document written by an online Will writing service, but then downloaded and printed to be signed in the presence of two witnesses. It’s a Will writing service offered online. There isn’t really such a thing as an Online Will, other than the Electronic Will described below.

A Digital Will

A document that describes the handling of your digital assets, including those of financial value and those of sentimental value. These can range from social media accounts to cryptocurrencies. This is described outside of your traditional Last Will and Testament, and usually appoints somebody to manage this activity (i.e. your “Digital Executor”).

An Electronic Will

A document that is signed electronically by yourself and by your two witnesses. The signing is usually completed remotely via video link, and the document can then be stored electronically in the cloud. At the time of writing, British Columbia is the only Province that legally accepts an electronically signed and stored Will.

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How LegalWills.ca created the first electronically signed Will in Canada.

On December 1st, 2021, new laws came into effect in British Columbia that allowed BC residents to create an “electronic Will” – a document signed and stored entirely online. After the emergence of the COVID-19 pandemic, most Canadian Provinces allowed remote witnessing of Wills – meaning that your witnesses could watch you sign the document over a video link. But this law still required the physical document to be mailed to each participant, to be signed in turn. The amendment to the BC Wills, Estates and Succession Act, through legislation called Bill 21, allowed, for the first time, a Will to be signed electronically and stored digitally.

LegalWills.ca has been working with a Canadian company, Syngrafii, for a number of months to pull together a truly unique solution to take advantage of these law changes. On December 1st, at 12:01am, Royce Burningham became the first Canadian in history to electronically sign his Will.

How do we know that this was the first electronically signed Will?

There have certainly been other claims to this title, but fortunately, the LegalWills.ca solution comes with an automatic activity trace called a MasterFile™. This is automatically uploaded into the account holder’s Vault within LegalWills.ca. Royce was kind enough to share his MasterFile™ with us.

First completed electronically signed Will at 4 minutes past midnight Pacific Time, December 1st, 2021

The complete MasterFile™ is 23 pages long and provides a detail of every action taken on the video call.

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A short explainer on electronically signing a Will in British Columbia

For the last 200 years, the law that describes how to write a Will has barely changed. You have been required to write a Will on a piece of paper and sign it in ink in the presence of two witnesses.

In 2020 because of COVID, some laws changed to allow witnesses to be “virtually” present.

However, the Will would still need to be mailed to each witness to be signed in ink.

2021 has seen the introduction of e-signing and digital Wills in some jurisdictions, and Bill 21 in British Columbia will make BC the first Canadian Province to allow a Will to be electronically signed and digitally stored.

LegalWills.ca has teamed up with the Canadian company Syngrafii to create the most complete electronic Will solution available to Canadians.

If you are a resident in BC, you can choose the option to e-sign your Will. You can invite your witnesses to a scheduled Video Signing Room. When you gather, you will be guided through each of the places to sign in the document.

LegalWills.ca then allows you to store your signed document in your Digital Vault together with an audit trail called a “Masterfile”.

You can then set your Executor up as a “keyholder”, to access the signed Last Will and Testament as well as the Masterfile, which can be printed and submitted to the probate courts in BC.

The partnership between LegalWills.ca and Syngrafii, together with the Digital Vault and Keyholder solution, makes this the perfect tool for creating and storing an electronically signed Will under the new Digital Will laws in BC.

Electronically signing a Digital Will with LegalWills.ca

At LegalWills.ca we have always felt that technology could do far more for Will writing and estate planning than the law allowed. The legal requirements for writing a Will hadn’t fundamentally changed for nearly two centuries. A Will had to be written on a piece of paper, then signed in ink in the physical presence of two adult witnesses, and then stored in a filing cabinet somewhere.

This was, of course, problematic. Countless Wills were left undiscovered, or even accidentally lost in a house fire or natural disaster. The requirement to be in the physical presence of two witnesses became a significant barrier during the COVID-19 pandemic.

Importantly, these “old fashioned” requirements did nothing more to protect the rights of the Will writer. Wills could just go missing or be fraudulently signed by unscrupulous family members. It was not uncommon to see elderly parents sign a document under suspicious circumstances, resulting in family members challenging each other through the court system.

2020 was a significant year for estate planning because, for the first time, the law that described the execution requirements was re-written for COVID-19. The witnesses were no longer required to be physically present, but they could witness the signing through a video link. However, the paper document would still have to be couriered around to each witness for a physical signature.

In British Columbia, 2021 is a major watershed moment in Will writing law because of Bill 21. This Bill, for the first time, allows not only remote witnessing, but also electronic signing and storage of Wills.

It’s worth noting that there is some inconsistency with terminology. The BC law refers to “Electronic Wills” and many people are using the term “Digital Wills” to refer to a Will that includes Digital Assets. At LegalWills.ca we feel that using the term Digital Wills to refer to digital assets is confusing, so in this article we will refer to a document that is electronically signed and electronically stored as both Digital Wills and Electronic Wills.

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How to Write a Will in Ontario

There are essentially three approaches to writing a Will in Ontario.

  1. You can write your own Will starting with a blank sheet of paper or a blank form Will kit
  2. You can prepare your Will with a professional lawyer
  3. You can use Will writing software like the service at LegalWills.ca

Background to Ontario Law

In Ontario, a Will must comply with the Ontario Succession Law Reform Act of 1990. The law states that:

  • A Will is only valid if it is in writing (video Wills, audio recordings, or verbal promises are not legally accepted)
  • At the end of the document it must be signed by the “testator” (person for whom the Will is made) and also signed by two witnesses.
  • The testator may make a valid will completely in their own handwriting and signature, without the presence, attestation, or signature of a witness (this is a “holographic Will”).

There are other interesting clauses within the Succession Law Reform Act, including the minimum age, and special clauses for active military service members. However, the clauses we have highlighted are the most pertinent to the discussion of how to make a legal Will in Ontario.

Writing a Will in Ontario
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How Do I Change my Will if I Have an Existing Will?

A Last Will and Testament should not be written once in a lifetime. It should be written as soon as you become an adult, and should be updated throughout your life as your circumstances change.

There are a number of reasons for updating a Will. You may have had a change of financial circumstances or your personal situation may have changed. For example, you may have married or had children.

There may also have been a change of circumstances for somebody named in your Will. Perhaps your Executor has taken ill or your chosen guardians for your children have moved overseas.

You may also simply have had a change of heart. A charity may have become a significant part of your life and you want to recognize their work in your Will. Of course your relationships with your beneficiaries can also change.

What happens if you have a Will in place and want to change that Will?

There are Three Ways to Legally Change a Will

1: You can manually annotate your Will by writing on it. You would still need to at least initial the change, and also have two witnesses sign or initial next to that change. This is the least preferred approach to updating a Will because it is the most likely way to have a Will challenged. However, if the change is relatively benign, you could certainly consider this, E.g. for updating an address.

How not to change a Will
The Worst Way to Update a Will
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What to Do After You Have Written Your Will

Completing your Will is an important step, but it is not the only thing that needs to be done to get your affairs in order. Working through the suggestions below will not only help you organize all of your assets, but will also ensure a smooth process for your surviving loved ones.

Store Your Will and Be Sure That Your Executor Knows Where it is Stored

Once you have signed your Will in the presence of two witnesses, who in turn sign the document, it is a legal Last Will and Testament. At this point, you simply need to store the document in a place that is known and accessible to your Executor.

Your Executor is the only person who needs access to the Will. You do not need to share the document with your beneficiaries or family members. Some people simply give the Will to their Executor (or alternate Executor) for safe keeping in a sealed envelope.

There is no requirement to store the Will with any particular registry, and there is no requirement to register the document with any court or government department (this is done after you have died).

Your Will is a document that can be updated throughout your lifetime. Any time you make a change to your Will, you should sign the new document in the presence of witnesses. Ideally, any older Will should be destroyed, although this is not a requirement. Your most recently signed and dated Will is your “Last” Will and Testament and the only one that is active (assuming that it meets the legal requirements for a Will).

Storing your Will
Make sure that your Executor knows where your Will is stored.
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Understanding the words used in your Will

Are you thinking of writing a Will? Have you perhaps heard of terms like “Executor”, “Bequest”, “Living Will” and are now worried that the process of writing your Will may be beyond you? You may be wondering whether it is possible to write a Will without understanding all of these legal expressions. After all, that’s why many people hire a lawyer to prepare the document for them.

You may be surprised to learn that you really don’t need to understand any of these legal words in order to use a service like LegalWills.ca. However, the words may appear in your final Will, and in that context they will make sense to you. We also explain some of the key definitions when you are working through the service. But you may be interested to learn exactly what some of these words actually mean.

Perhaps you wrote your Will with a lawyer. You have had it witnessed and now it’s stored at your lawyer’s office but you still have no idea what it says. Don’t worry, this isn’t an uncommon situation. Many people go through the whole task of writing a Will and signing it when they don’t fully understand what it says.

Unfortunately in today’s legal world, estate attorneys don’t always have sufficient time to go over every detail and word of a Will. This is partly because their time costs money, but also because writing a Will is an everyday common practice to them. Therefore, they often neglect to go over the basics with their clients. An experienced and understanding estate attorney should always be willing to go over every detail of your Will and explain any confusing language so that you feel comfortable when signing it. However, the legal environment can be intimidating and attorneys may assume that you understand the legal terms when in fact you don’t.

Understanding legal words in the Will

At LegalWills.ca we almost fall into the same pattern ourselves when we talk to customers about the “Executor” and the “Beneficiaries”. We forget that some people may be hearing these words for the first time. They are words that are rarely, if ever, used outside of the context of writing a Will.

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More Will writing Myths

I recently happened upon a Facebook ad promoting an online Will writing service. There are a few different services in Canada, and because Facebook knows that I have an interest in Will writing, I seem to be targeted for every ad from all of our competitors. This particular ad has been running for many months, and garnered nearly 200 comments.

I feel a little sorry for this service provider though, because the comments are riddled with myths, misconceptions, or could we even go as far as to call it “fake news”. The comments section has a surprising level of misunderstanding. I thought it would be interesting to dissect some of these comments, and put the record straight.

The Holographic Will

“Half of it is handwritten and half is typed, which means courts will reject it as a holograph Will”.

The holographic Will causes so much confusion, but it’s really very simple. A Will must be signed in the presence of two witnesses to make it legal, but some provinces make an exception to this rule. Sometimes it is simply not possible to gather two witnesses (for example, if you are stuck under a rock), and you may need a Will in a hurry. So some provinces allow you to prepare a Will without witnesses if it is entirely written in your own handwriting. This is called a holographic Will.

Here’s the catch: not all provinces accept a non-witnessed holographic Will (notably British Columbia), so it makes sense to prepare a Will and sign it in the presence of two witnesses.

However, all provinces will accept a document that is signed in the presence of two witnesses whether it is all handwritten, all typed, or a mixture of the two.

So in answer to Jenn Hurst’s point, an online service is not helping you to prepare a holographic Will. If half of the document is typed, it is not a holographic Will, so it must be signed in the presence of two witnesses. A document that is signed in the presence of two witnesses will be accepted in all Canadian provinces, regardless of if it is typed, handwritten, or a mixture of the two.

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Trends in Canadian Will Writing – 2021 Will Survey

Five years ago, LegalWills.ca conducted a unique survey of Will Writing in Canada. We wanted to not only explore the number of Canadians with and without Wills, but also the number of people who had a Will, but felt it had not been kept up-to-date. We broke down these numbers by region, income, and age, and published the numbers on our blog.

In the five years since then, there have been a number of events that we have felt may have influenced these numbers, not the least of which has been the COVID-19 pandemic. As we reported at LegalWills.ca, and the article was picked up in the media, the pandemic caused a massive spike in Will writing.

In the last five years we have also seen a proliferation of new convenient Will writing tools from websites providing some of the services offered by LegalWills.ca. At least five service providers have popped up since our last survey, including Willfora, OM Company, Willowbee, Willful, and Epilogue Wills. The services range from “work in progress” to actually quite good, and range from “absolutely free” to $139 for a simple Will. All of the service providers have one thing in common: they are all claiming significant success in encouraging Canadians to write their Will by offering a convenient alternative to making an appointment with a lawyer. We have also seen companies like Axess Law appear on Canada’s fastest growing businesses with their budget Will writing service for $200. There have also been technical innovations from companies like Notice Connect offering the Canada Will Registry and NotaryPro.ca offering virtual witnessing and notarizing of Wills.

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Did COVID inspire more people to write their Will in 2020/2021?

At LegalWills.ca we have provided an online option for preparing estate planning documents since 2001. This gives our company a unique insight into industry trends and allows us to explore the triggers for writing a Will. But in the midst of the COVID-19 pandemic, the last 12 months has been a truly unique experience for us.

Will writing is traditionally one of those tasks that you just don’t get around to. The statistics bear this out, with our own survey showing that around two thirds of Canadian adults do not have their Will in place. Most of these people know that it’s important to write a Will, but it’s a task that is put off until next week, next month, or next year.

However, in 2020 and 2021, something very dramatic happened. LegalWills.ca saw an incredible spike in the number of people writing their Will. There was a lot happening around the world, but the obvious conclusion was that the COVID-19 pandemic nudged people to finally get their Will in place.

At LegalWills.ca we felt that the sudden surge in Will writing was fascinating, and we wanted to take a deep dive into the motivation for writing a Will. We are fortunate to have a large pool of customers who we can ask the simple question, “Why did you decide to write your Will?”

Why do people usually write their Will?

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What makes writing a Will in Québec unique?

Overview of Writing a Will in Québec

Une version française de cet article apparaît sous la version anglaise

Everybody has a legal right to prepare their Will. But there are a few different approaches to doing this.

Did you know that you could write your Will on the back of a napkin? It would be a perfectly legal document and if it’s all in your own handwriting, it is known as a holographic Will. In most Canadian provinces, this document doesn’t even need to be witnessed to be accepted by the courts. Québec allows you to prepare a holographic Will and accepts it as a legal document.

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Couple’s Will – Writing Wills as a couple in Canada.

Fifty-five percent of the people who use the Will writing service at LegalWills.ca describe themselves as married, while a further eleven percent are in a common-law relationship. In most cases, these people are preparing their Wills as a couple. In this post we want to break down exactly what is meant by a Couple’s Will, and the steps involved in creating Wills for two people when using the service at LegalWills.ca

Creating a couple's Will at LegalWills.ca
Couple creating their Will at LegalWills.ca

How can I prepare a Will in Canada?

Let us start by discussing the different ways to prepare a Last Will and Testament in Canada. It boils down to essentially three approaches:

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Why writing a Will is the first thing to do as a new parent

Guest post by Barry Choi: a personal finance and travel expert based in Toronto who makes frequent media appearances. His website moneywehave.com is one of Canada’s top resources for anything related to travel and money. Barry shares his thoughts on the importance of Writing Will as a new parent.

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In 2017, my wife and I welcomed our daughter to the world. I wish I could tell you everything went according to plan, but it took years to get pregnant. It’s not like something just clicked one day, we had to get help via IVF.

It was a daunting process with many appointments and tens of thousands of dollars spent. We researched the topic and spoke to various healthcare professionals and parents who also faced a similar ordeal. When she was finally born, we knew she was a miracle, so we wanted to ensure that we cherished every moment with her.

Writing a Will as a new parent
Credit: Pexels

Unfortunately, we made one significant mistake right away. We didn’t get our wills set up. It took close to a year before we got them done and admittedly, there was more than one occasion where I thought to myself, what if?

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Why we’ve decided to help Education workers

Let me start this article by saying that we believe everybody should have a Will. I have a Will, I wrote my first Will when I was 30 years old before I was married and before I had children.

A Will is a key document that should be in everybody’s drawer. It is not a once-in-a-lifetime task. You write a Will as soon as you are an adult, and then you should update it throughout your life as your personal and financial circumstances change.

Free Wills for Education workers
credit: 123rf

But the reality is that most people don’t have a Will. Traditionally, the process has been expensive and inconvenient. It just doesn’t make it to the top of the To-Do list. Survey after survey shows that about 65% of Canadian adults do not have an up-to-date Will in place.

But in our 20 years of offering our services, we have seen key triggers for Will writing. Every year, the first week of January is a busy one for us, as people make New Year’s Resolutions and commit to getting their affairs in order.

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Yes, we now support Québec Wills!

We wrote a blog article back in 2014 explaining why we didn’t support Québec Wills. We explained that it was a really tricky challenge. But the good news is that after months of work, we can now proudly say that our service is available across the whole of Canada, no exceptions. All of our services now support all Canadian provinces and territories, including Québec.

Quebec Wills

Background to Québec Law on Wills

To provide some background, Québec law was established around the middle of the 17th century. Louis XIV decreed that the laws of Québec would be based on the laws of Paris, which were a variant of “civil law”. Although the laws changed a little in the years that followed, the Québec Act of 1774 reinstated the Civil law system for the Province of Québec, even though it had since been placed under British rule. When Canada was officially created in 1867, all Provinces adopted the British “Common Law” of English origin, while Québec retained their “Civil Law” derived from the Napoleonic code.

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Working with a Will – The most common problems that arise

At LegalWills.ca, we help you to write your Will. We do not get involved in the probate process at all. After you have died, your Will is probated, and your Executor has the responsibility to carry out the instructions in your Will. Sometimes this is where the problems start and estate disputes arise.

This is separate from a challenge to a Will. Estate disputes are arguments arising while the estate is being managed by the Executor.

We recently spoke to Neil Milton of Ontario-Probate.ca. He specialized in probating of estates and has seen first hand the kinds of problems that can arise, and he also knows how to fix them.

He has kindly prepared this guest article, distilling his knowledge into the most common types of disputes that crop up while the Executor is trying to manage an estate.

Common estate disputes

While there are many causes of estate disputes, formal ‘will challenges’ are actually quite rare.

Common estate disputes
Credit: 123rf

There are a whole host of grievances that people have which usually fall in to one of the following categories:

  • Debts incurred by the deceased before their death and not paid before death;
  • Gifts made by the deceased before their death which reduce the size of their estate;
  • Obligations created by statute which must be paid by the estate before any distribution is made to beneficiaries;
  • Failure of the estate trustee to act at all;
  • Improper actions by the estate trustee; and,
  • Allegations that the will itself should be invalid (a ‘will challenge’).

Disputes in these difference categories are often handled by the Courts very differently – some are relatively quick and inexpensive to pursue, others are very complex and expensive.  It is very important to get the advice of experience legal counsel to determine whether there is a case and if so how to pursue it.

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