(This article uses the male gender pronoun, but it applies equally to female persons.)
When you go to your financial institution to apply for a mortgage, or to invest your money, your mortgage specialist or your financial adviser will ask you to make a Will. In the case of your passing/death, your Will will appoint your executor and name your beneficiary/beneficiaries. Your financial institution will then deal with your executor and/or your beneficiary/beneficiaries, as the case requires.
A Will is a document to dispose of your assets after your death. The testator of the Will has to be of Adult/majority age (18 years old in Ontario) and of sound mind. It is not meant for you to cheat your 65 years old wife or to cheat your 13 years old daughter out of your assets – so that you can leave your nest egg to your 18 year old girlfriend after your death. An Executor of your Will (adult age) has to execute (dispose of your assets) in accordance with your Will’s instructions after your death. Do NOT name your (never did an honest day’s work) beer buddy or your ne’er do well nephew to be the executor of your Will. Usually, the testator also names an alternate executor of the Will – in case the first named executor is unable or unwilling to act upon the death of the testator, then the alternate executor can act as the executor of the Will.
- In Canada, Wills are under the jurisdiction of Provinces/Territories.
- Most Wills do not require probate. However, sometimes there is a dispute amongst the beneficiaries of the Will, or the holders of the testators’ assets (usually financial institutions or corporations) require a probate of the Will before they allow the transfer of the testators’ assets to the beneficiaries under the Will, then the probate of the Will will be required. In Ontario, Wills are probated (approved) by the Superior Court of Ontario. In jurisdictions which follow the English Common Law (Ontario is one of those jurisdictions), you have to probate a Will in the deceased’s domicile (permanent residence) province at the time of his/her death. If, however, the deceased owned real property in another province/country (other than his/her domicile province), the Will disposing of these assets must also be probated in that province/country.
- Ordinarily, for most Ontarians of modest means, a Will is a simple thing. You can even download a standard form Will from a website and execute (follow the procedure to make the will valid) that form Will. Usually, the standard Will leaves everything to the spouse, and upon the death of the spouse, leaves everything to the deceased’s children. Sometimes, you also leave a small gift to another relative/friend or to a charity.
- Since Ontario Wills are so simple, why should I write this article about Ontario Wills? I am writing this article for a Chinese language newspaper. Most of the readers of that newspaper are Immigrants: from China, Hong Kong, Taiwan, Singapore, Malaysia, Vietnam and others. For these immigrants, the standard Ontario Will may not be sufficient.
- There was a Diplomatic Conference on Wills in Washington, D.C. on 16-26 October, 1973. The result of that Conference was the drafting of an International Will. The Convention Providing a Uniform Law on the Form of an International Will was completed on October 26, 1973. 21 countries (including subdivisions of those countries) either have signed the Convention or have consented to be bound by that Convention. Most of the Canadian Provinces, including Ontario, have consented to be bound by this International Will. In ethnic Chinese majority countries, neither the People’s Republic of China, nor Hong Kong, nor Singapore has signed or consented to be bound by the International Will. (The Republic of China (Taiwan) signed this International Will Convention on October 27, 1973, and consented to be bound by this Convention as of January 1, 1979; however, the United States of America does not recognize the government of the Republic of China/Taiwan, therefore the United States does not recognize Taiwan’s signature on this Convention or Taiwan’s Consent to be bound by this International Will Convention.)
- MULTIPLE WILLS
- Unfortunately, the International Will is not successful – at least not in ethnic Chinese majority countries/jurisdictions. In this paper, we are dealing with a testator who owns assets in more than just Ontario.
- In Ontario, there are two types of Multiple Wills:
(a) To probate a Will in Ontario, the executor of the deceased’s estate has to pay an estate administration tax (probate fee) depending on the monetary value of that estate. Probate fees change from time to time, but Ontario has the highest probate fee in Canada – highest marginal rate of this probate fee is $15 per $1,000 versus $7 per $1,000 for other provinces/territories. Previously, the probate fee was paid to the Superior Court; however, as of January 1, 2015, upon the death of the testator, the executor of the estate applies for a Certificate of Appointment from the Ontario Superior Court, and, within 90 calendar days after the issuance of this Certificate of Appointment, the executor of the estate has to file an Estate Information Return to the Ontario Ministry of Finance, and pay the estate administration tax (probate fee) to the Ontario Minister of Finance. (If the executor files an incorrect return, he must correct it promptly and pay more tax, if required. If the executor files a false return, he is subject to fine or imprisonment.)
(b) To reduce estate administration tax (probate fee), a testator drafts 2 Wills – Private Assets Will (which will not be probated) and a Public Assets Will (which will be probated). (Please note that in the 2007 Supreme Court of Canada case Pecore v. Pecore, the Supreme Court of Canada held that, for a parent to put title to assets owned by the parent into join names of the parent and one or more adult children, such assets are presumed to be held upon resulting trust for the estate of the deceased parent.) This paper does NOT deal with Multiple Wills to reduce estate administration tax.
(c) The testator wants to devolve/transmit his estate located in more than just Ontario to his beneficiaries. We then create for the testator one Will for all his Real Estate assets located in Ontario, plus most of his personal assets, and another Will for all his Real Estate assets in another jurisdiction, plus his personal assets associated with those Real Estate assets (e.g. furniture in a house) in that jurisdiction (China, Hong Kong, Taiwan, Singapore).
(d) The foreign Will should include the testator’s Real Estate in that jurisdiction plus personal property associated with that Real Estate (e.g. furniture in your house in China). Your Rolex watch and your diamond ring are best included in your Ontario Will – even if you wear your Rolex watch and your diamond ring to China. Without claiming any expertise in the drafting of Wills in these jurisdictions, here I am merely setting out my first impression on the drafting of Wills in the following Jurisdictions:
(i) Hong Kong, Singapore, Malaysia: These were previously British Colonies. Their laws of Wills are similar to Ontario’s. (Be careful that the age of majority in some of these jurisdictions may be different from Ontario’s – e.g. age of majority at 21 years of age.)
(ii) Republic of China/Taiwan, China: Taiwan has adopted much of the German Civil Code. In China, an individual does not OWN the land, but he owns the USE of that land, plus the structures on that land – for a stated time period. The Chinese lawyer drafting the Chinese Will has to take all these limitations into consideration.
(iii) Vietnam: Vietnam was a French Colony. Vietnam does not recognise a Vietnamese Will unless the testator is a Permanent Resident of Vietnam. Whether a person who lives 6 months in Ontario and 6 months in Vietnam qualifies as a Permanent Resident of Vietnam, I leave it to a Vietnamese lawyer to sort out.
(iv) Brazil: Brazil courts have a monopoly to deal with land in Brazil. A Brazilian Will dealing with land in Brazil is most appropriate. (If the testator has a Brazilian spouse and Brazilian children, then the succession of the testator’s assets in Brazil is governed by the Brazilian law, for the benefit of these Brazilian spouse and children.)
- The testator can also incorporate an Ontario/Canadian/foreign corporation, fold his assets into his corporation, and then devolve/transmit his whole world assets to his beneficiaries by devolving/transmitting his shares in his corporation to his beneficiaries. But these incorporation instructions should come from the testator’s financial advisor. Usually, the testator’s lawyer merely drafts the testator’s Will.
III. EXECUTION OF THE ONTARIO WILL
- I no longer act as a witness for the execution of an Ontario Will. The testator has to bring 2 witnesses to the execution of his Will. The Witnesses must be adults and may NOT be beneficiaries under the Will (also they may NOT be the spouses of beneficiaries/possible beneficiaries under the Will (e.g. a daughter-in-law of the testator)).
- I first explain the contents of the Will to the testator (either in English or in Chinese). Upon the testator agreeing to the contents of the Will, then the testator signs the Will, and initials each page of the Will. Then the witnesses sign the Will, and initial each page of the Will. If I have explained the contents of the Will to the testator in Chinese, then I will add a paragraph at the bottom of the Will, stating the following:
“I, Peter M. Shen, am fluent in both the English and the Chinese languages. I have interpreted/translated to the Testator, ___________, the complete contents of the above Will from the English language to the Chinese language, and the Testator, _____________, has told me that he completely understands my interpretation/translation, and he completely agrees with the contents of this Will.”
I then sign at the bottom of this paragraph as the interpreter/translator of this Will.
- I then prepare a document called the Affidavit of Execution of the Will, in the name of one of the witnesses. That witness then signs this Affidavit, then I also sign this Affidavit as a Commissioner for Taking Affidavits. In that Affidavit, it states that the named witness was present and saw the original of the Will (marked as Exhibit “A”) executed by the testator in the presence of the named witness and the other (insert name of the other witness) witness. I then stamp the back of the original Will with a stamp stating the following:
“This is Exhibit “A” to the Affidavit of (insert the name of the named witness) sworn or affirmed before me, this_____ day of ________________, 20_____.”
I then sign under that stamp as Commissioner for Taking Affidavits. I then give both the original Will and the original Affidavit to the testator, leaving only a copy of the Will and a copy of the Affidavit for my file.
- The Government of Ontario has asked us lawyers who draft Wills to also draft “Living Wills” for our clients. The “Living Will” contains Power of Attorney for Personal Care and Power of Attorney for Property. But that is the subject for another article.