What Should Be in a Will?

A will must clearly state the intentions of the testator in language that is easily understood by those responsible for administering the estate. A confusing will can be as ineffective as no will at all. Even simple instructions can take a number of pages to be expressed in correct legal terms.

It's impossible to describe here the clauses that could be relevant in every case since every individual's situation is unique and requires "custom" advice. For information purposes only, here are some commonly used will clauses.

IDENTIFICATION AND REVOCATION

• Identifies you and often your domicile. (Your usual residence, called "domicile" by the court, decides under which provincial laws your estate will be administered.)

• Declares that this document is your last will and that all prior wills and codicils are revoked (may not be included in situations of multiple wills).

APPOINTMENT OF EXECUTOR(S)

• Designates the individual(s) or institution(s) you appoint as your executor, either individually or as co-executors (co-trustees).

• A successor or alternate executor may also be designated to act if your original choice of executor is unable or unwilling to accept the responsibility.

PAYMENT OF DEBTS, TAXES AND FEES

• Instructs your executor to pay all debts (mortgages, loans, funeral and estate administration expenses) out of the estate.

• Authorizes your executor to pay income taxes or probate fees that may be payable.
  *Not applicable in Quebec (called estate administration tax in Ontario).

SPECIFIC BEQUESTS

• Details the distribution of specific personal property to specific beneficiaries.

LEGACIES

• Details the distribution of specific cash amounts.

LIFE INTEREST CLAUSE

• Leaves someone the income or the use and enjoyment of an asset, but not the ownership of the asset itself. On the death of the person holding the life interest (called the life tenant), the asset would pass to another beneficiary, chosen by you, and identified in your will. In Quebec, this would be an "usufruct."

TRUSTS

• Sets out the terms of any testamentary trust(s) (i.e., a trust created on the death of the testator) created by your will.

ENCROACHMENT CLAUSE

• Used in a trust if you want the trustee to be able to give the beneficiary of the trust additional funds for special circumstances or needs.

RESIDUAL ESTATE

• Details the distribution of your remaining property after all of the specific bequests have been made and all legacies have been paid.

COMMON DISASTER/SURVIVOR CLAUSES

• Details the distribution of the assets if intended beneficiaries die at the same time you do, or do not survive you beyond a set period of time (often 30 days). Also details the dispersal of assets if intended beneficiaries die before all trusts are terminated.

GUARDIAN APPOINTMENT

• Names the individual(s) whom you appoint as guardian(s) (called a tutor in Quebec) for your minor children. (In many provinces, this is an appointment valid for 90 days, after which the court determines what is in the best interests of the children.)

POWER CLAUSES

• Empowers your executor(s) to exercise various powers (choice of investments, decision-making powers, etc.) in the management of your estate without having to obtain court approval.

TESTIMONIUM AND ATTESTATION

• Formally confirms that you have read and understood the contents in the will, records when and where the will was signed and that witnesses were present at the time you signed the will.