Wills – FAQs
Who can be an Executor?
An Executor is the person named in the Will to carry out the instructions in the Will. Anyone who is eighteen or over and is of sound mind can be an Executor. The Executor can be a beneficiary. You can have more than one Executor. Try to choose Executors who will be competent and available to do the job and will not have a possible conflict between their responsibilities and their personal wishes. In Ontario, an Executor is officially called an “Estate Trustee”.
Can a person dispose of property by Will in any way he or she wishes?
Yes, with some exceptions. For example, a dependant may claim a share of the estate if he or she is not adequately provided for in the Will. Also, the maker of the Will may have entered into agreements during his or her lifetime that restrict the disposition of his or her property. A surviving spouse may also claim an equalization under the Family Law Act instead of receiving the benefit left to him or her under the will, thus varying the outcome of the Will.
Can a Will be changed?
Yes, it can be changed or revoked by the maker any time before death if the maker is competent. A document changing a Will is called a “Codicil”. Depending upon the number and complexity of changes, it is sometimes preferable to prepare a new will.
What is the effect of marriage or divorce on a Will?
In Ontario, a Will is revoked by marriage unless the Will is stated to be in contemplation of the particular marriage. Unless a contrary intention is expressed in the will, divorce revokes the provisions in the Will in favour of the former spouse.
What about funeral arrangements, personal effects and organ donations?
A person can make their wishes for funeral arrangements and organ donations known to the Executor through the will but it is preferable to deal with these matters in other ways. Remember, the Will may not be carefully reviewed until after the deceased is buried. Personal and household effects can be dealt with in several ways. For example, the Will can provide for specific gifts, or can refer to a memorandum that is kept with the will but does not form part of the will. This memorandum sets out a list of beneficiaries and items that the testator intends to give to those beneficiaries. The advantage of the memorandum is that the list can be changed without changing the will. Because the memorandum is not part of the will, it is not legally binding on the Executor but only morally binding. In our experience, this has been a satisfactory and effective way of dealing with personal assets.