With an increasing number of Canadians working and living overseas, estate planning can become particularly complex. This is especially true for Ontarians who live outside Ontario and pass away there. Understanding the nuances of making a will in Ontario, a Commonwealth country, or a non-Commonwealth country is crucial for ensuring that your assets are managed and distributed according to your wishes. Here’s a guide to help you navigate these complexities effectively.

1. Making a Will in Ontario

Why Make a Will in Ontario?

Creating a will in Ontario ensures that your assets located within the province are managed according to Ontario law. This can be especially important if you have significant holdings in Ontario or plan to return in the future.

Key Steps:

List All Assets: Clearly enumerate all assets located in Ontario, including real estate, bank accounts, and personal property.

Appoint an Executor: Choose an executor who is an Ontario resident and can handle estate administration in the province.

2. Making a Will in a Commonwealth Country

If you reside in a Commonwealth country, your Will may be recognized in Ontario due to the legal similarities among Commonwealth nations. The process of resealing allows the will to be enforced in Ontario.

Steps to Ensure Smooth Estate Administration:

Rule 74.08 of the Rules of Civil Procedure: This rule outlines the process for resealing an appointment of an estate trustee with or without a will granted by a court in the United Kingdom, any Canadian province or territory, or any British possession.

74.08 (1) An application for confirmation by resealing of the appointment of an estate trustee with or without a will that was granted by a court of competent jurisdiction in the United Kingdom, in a province or territory of Canada or in any British possession shall be in Form 74J, and shall be accompanied by,

(a) two certified copies of the document under the seal of the court that granted it, or the original document and one certified copy under the seal of the court that granted it;

(b) the security required by the Estates Act; and

(c) such additional or other material as the court directs

3. Making a Will in a Non-Commonwealth Country

Ontario has a well-developed legal system that can enforce Wills from non-Commonwealth countries, ensuring your Ontario assets are distributed according to your wishes.

Rule 74.09 of the Rules of Civil Procedure: This rule outlines how to apply for a certificate of ancillary appointment of estate trustee with a will when the will is from a jurisdiction outside Ontario that is not a Commonwealth country.

74.09 (1) An application for a certificate of ancillary appointment of estate trustee with a will where the applicant has been appointed by a court having jurisdiction outside Ontario, other than a jurisdiction referred to in rule 74.08, shall be in Form 74J, and shall be accompanied by,

(a) two certified copies of the document under the seal of the court that granted it;

(b) the security required by the Estates Act; and

(c) such additional or other material as the court directs.

Conclusion

Whether you are making a Will in Ontario, a Commonwealth country, or a non-Commonwealth country, it is essential to understand the specific legal requirements and processes to ensure your estate is managed according to your wishes. By making a Will, you can ensure a smooth and clear distribution of your assets, minimizing potential conflicts among heirs.

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