Wills and Estates – Common Law Basics of Wills, Estates, and Trusts

It may seem intimidating and morbid to think about how you want to distribute your assets after you die. However, we like to think of it as making the necessary preparations to ensure that your loved ones do not need to go court to resolve disputes over assets.

We understand that there is a lot of consideration before you can even begin to draft a Will to dispose of your Estate property or set up a Trust. For this reason, we have simplified the terms and concepts for you below as an introduction. Wills and estate lawyers can help you with common law.




A Will provides information on how you would like to distribute your assets after you die. In Ontario, Wills are governed by the Succession Law Reform Act.

In some cases, an individual can be partially intestate if the deceased validly disposed of some but not all assets in accordance with the terms of the Will. 



Types of Wills

1) Attested Wills: A will is a document that states who inherits the property of someone upon their death.

2) Holographic Wills: A testator may make a valid Will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or digital signature of a witness.

3) A military service member can write their will and sign it in front of a witness (without any other formalities).

4) International Wills: A Will is a document that records what their owner wants to happen with assets after they die.

A Will is valid when it is prepared and meets the formalities required in the Succession Law Reform Act. An attested will must be:

  • In writing;
  • Signed at the end by the testator, or another person in the testator’s presence under his or her direction;
  • The signature must be signed or acknowledged in the presence of two or more witnesses, present at the same time;
  • Two or more attesting witnesses must sign the Will in the presence of the testator
  • If a Will does not comply with the formalities of execution prescribed in the Succession Law Reform Act, a court Will consider it invalid and proceed to dispose of assets as if the Will did not exist.
  • A valid Will only becomes effective after the testator’s death.
  • Ambulatory recognizes that a Will can expand and contract over time to consider assets that a person acquires over their lifetime. 
  • A Codicil is an amending document that supplements, explains, or modifies the Will in some manner. If the change is minor, drafting a codicil is the least expensive option.
  • However, the probabilities of success vary depending on the contester’s relationship to the deceased.
  • You must be at least 18 years old to write a Will, unless: 



The “Estate” includes all of the property, financial assets, and debts at the time of an individual’s death, including:

a. Realty: All real property owned by the individual; and

b. Personality: All other property owned by individuals other than real property, including monies, investments, stock certificates, automobiles, personal effects, and furnishings.

In Ontario, estates are governed by the Estates Act.

An Estate Trustee sometimes referred to as the executor, is the person who is responsible to distribute the gifts set out in a will after paying any outstanding debts of the deceased, and filing taxes on the estate.

Probate is a procedure asking the court to:

  1. Give an individual the authority to act as the estate trustee of an estate, or
  2. Confirm the authority of an individual named as the estate trustee in the deceased’s will
  3. Formally approve that the deceased’s will is their valid last will.

Will’s and estate lawyers can make a big difference when it comes to protecting your property, legacy or family heirlooms.




The Estate Trustee may hold gifts in trust for some time if the beneficiaries are minors.

In other words, Trust is a three-way relationship:

Settlor –> gives property to –> the Trustee, to hold on behalf of –> the Beneficiary

  • A testamentary trust is a trust that is established on the testator’s death.
  • If you have no will, your assets go to a trust.
  • Inter Vivos trusts are obligations to make payments that can be either debt or a gift.
  • In Canada, Trusts are taxable.

Consider preparing ahead of time to save yourself and your loved ones many headaches later. Our Wills and Estates Lawyers will work with you to plan for the future.


We highly discourage anyone from seeking out legal advice through this article. This article only provides general information and should you require assistance, please contact us to book a free initial consultation 905-366-0202 or through our website here.


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