Wills and estates law in Canada: the basics

Every person – regardless of how many properties they own – is encouraged to create a will or do estate planning. This is to pursue a peaceful transition of generational wealth from one person to another, and to prevent any future family disputes. For this purpose, the wills and estates laws in Canada are a helpful source for testators, decedents, and heirs alike.

Considering a move into this type of law work? Here’s a place to start! Are you an established lawyer? Share this with clients to give them a basic understanding of the work you’ll be doing with them.

What are the wills and estates laws in Canada?

Wills and estates laws regulate the transfer of properties from one person to another and all the other incidents of such process.

It includes testamentary validities of wills, intestate succession, and successional rights of heirs. The laws also provide for the duties of an executor or an administrator.

Provincial wills and estates law

In Canada, there is no single federal law on wills and estates. Instead, wills and estates laws are enacted by the different provinces or territories.

In other words, wills and estates laws in Canada, including Powers of Attorney, probate, guardianship, and trusteeship are under the provincial and territorial jurisdiction.

Here are some of the wills and estates laws across the common law provinces of the country:

• Ontario: Succession Law Reform Act (SLRA) and Estates Act
• British Columbia: Wills, Estates and Succession Act (WESA)
• Alberta: Wills and Succession Act (WSA)
• Nova Scotia: Wills Act, Probate Act, and Intestate Succession Act

As for Québec, wills and estates fall under the Québec Civil Code, specifically its Book Three on Succession.

In Manitoba, its wills and estates law is The Wills Act. Watch this video to know more about this law and its process for probate of wills:

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How do wills work in Canada?

There are two types of wills that a testator (person making the will) can make:

• Holographic Wills: personally handwritten by the testator.
• Formal or Notarial Wills: made by a testator with the help of a lawyer or a notary.

Under the provincial wills and estates laws, there are certain requirements for the validity of holographic and notarial wills.

Although each province has different wills and estates laws, provisions on the validity of wills are almost similar.

Holographic Wills

Since these are personally made, requirements for the validity of holographic wills are more relaxed compared to notarial wills.

For instance, for holographic wills to be valid under Alberta’s WSA, it must be:

• made in writing;
• handwritten by the testator; and
• signed by the testator without the presence or signature of a witness.

Holographic wills do not have any other formalities required other than those mentioned above.

Formal or Notarial Wills

Formal or notarial wills are held to a higher standard than holographic wills. It must be signed by the testator, witnessed by 2 or more people who must also sign the will in the testator’s presence.

Ontario’s SLRA states these conditions for a valid formal or notarial will:

• It must be in writing; oral “notarial wills” are invalid.
• It must be signed by the testator at the end. If it’s signed by another for the testator, it must be signed in the testator’s presence and only under the testator’s direction.
• 2 witnesses must be present during the testator’s signing of the will.
• The same 2 witnesses must sign the will in the presence of the testator.

After the COVID-19 pandemic, virtual or remote witnessing is now permitted under provincial wills and estates laws.

Requisites as to Testator

Common to holographic and notarial wills are the requisites as to the testator’s personal circumstances. The provincial wills and estates laws state that for the will to be valid, the testator must be:

• 18 years old and above; and
• of sound mind or is mentally capable.

This age requirement may differ in some provinces. For example, under BC’s WESA, persons who are 16 years old and above can make a will. However, the witnesses to such a will must still be of legal age, in addition to the other usual requirements of a valid will.

What is the order of inheritance under Canada’s wills and estates laws?

What happens when a person dies without a will in Canada? The wills and estates laws – their provisions in intestate succession, in particular – will apply.

In intestate succession, the properties or estate of the deceased are distributed applying the provincial or territorial will and estate law. It also depends on whether the deceased has any surviving heirs at the time of death.

The rules on order of inheritance will also vary between provinces or territories. As such, it’s important to check with a wills and estates lawyer for more details.

Here is the order of devolution of successions under the Québec Civil Code, which will depend on the following surviving heirs of the deceased:

• Spouse and children:
  • Spouse: 1/3
  • Children: 2/3
  • Parents and Siblings are excluded from the succession
• No Spouse, with children:
  • Children get entire succession
  • Parents and Siblings are excluded from the succession
• Spouse, but no children, no parents, and no siblings:
  • Spouse gets entire succession
• No children but survived by spouse and parents:
  • Spouse: 2/3
  • Parents: 1/3
  • Siblings are excluded from the succession
• No children, no parents, but survived by spouse and siblings (or children of the siblings):
  • Spouse: 2/3
  • Siblings (or children of the siblings): 1/3
• No children, no spouse, but survived by parents and siblings (or children of the siblings):
  • Parents: 1/2
  • Siblings (or children of the Siblings): 1/2

How long does an executor have to settle an estate in Canada?

The fixed period for settling the estate will depend on the wills and estates law of the province. However, as a rule, an executor must settle the deceased’s estate within 1 year.

Do all wills have to go through probate in Canada?

Generally, wills must go through probate in Canada. The provincial laws on wills and estates offer some exceptions. In Ontario, the following circumstances need not go through probate:

• If the will involves only a small estate: if the estate’s value is C$150,000 or less.
• Joint bank accounts: such accounts will be passed to the other joint owner.
• Insurance policies: such policies will be passed to the named beneficiary or beneficiaries.

For more articles like this one, read and bookmark our Trusts and Estates section. You’ll find news and insights on wills, estate planning, and succession planning.

Have questions about different wills and estates laws in Canada? Drop them in our comment section below.