Clients often ask: are joint wills legal in Ontario? Creating a joint will can sound appealing, especially for spouses. Having a single document that covers you and your spouse’s shared intentions appears to be a simpler and more convenient option when compared to creating simple wills.
However, many jurisdictions do not allow will-makers to create joint wills. Is Ontario one of them? We discuss this in detail.
What are Joint Wills?
Joint wills (or “mutual wills”) are created by two people who want to make shared decisions regarding how their assets will be distributed when they pass away. Rather than creating separate wills, the individuals draft one document that covers their combined wishes.
With joint wills, the will’s provisions are binding on both parties. This means that if one of the two parties dies, the other person cannot unilaterally change the will after their death.
Joint Wills and their Legality in Ontario
In some Canadian provinces, including Ontario, joint wills are not illegal. However, most Ontario estate lawyers do not recommend joint wills. They may suggest several other estate planning tools for spouses who intend to outline their joint intentions in their estate plans.
The Risks of Creating Joint Wills
Below are just a few reasons why joint wills come with risks for estate planners.
Joint Wills are Inflexible
The largest risk with joint wills is that they are binding on both parties. If one of the will-makers dies, the surviving will-maker cannot change or revoke the joint will. This lack of flexibility can create serious risks, especially when a surviving will-maker changes their mind or distributes assets before they pass away (for example, if the surviving will-maker wishes to provide a beneficiary with some of their inheritance early).
Joint Wills Provide Limited Testamentary Freedom
In many cases, spouses will be aligned on how they want their assets to be distributed after death – but not always. When creating a joint will, the parties must agree on the joint terms and distribution of assets. This requirement can create problems in situations where one will-maker wants to leave assets to different beneficiaries or otherwise prefers a course of action that does not align with the other will-maker’s wishes (to say nothing of the pressure, real or perceived, to “agree” at the cost of true testamentary freedom).
Joint Wills Create Potential for Disputes (or More Work)
The inflexibility and limits on testamentary freedom created by joint wills can create potential disputes – or, at the very least, more work – down the line. For example, if a surviving will-maker wants to change or update their estate plan, they cannot simply update their will. This can result in additional conflict or difficulties, such as legal applications (or legal challenges, depending on the circumstances).
Alternatives to Joint Wills in Ontario
There are several alternatives to joint wills in Ontario that allow spouses to outline their intentions – and respect one another’s intentions – without having to deal with the risks of creating a joint will. We have outlined a few of these options below.
Instead of creating a joint will, spouses can create individual wills. Creating individual wills allows spouses to have complete control over their estate plan and to update their will as needed without requiring their partner’s consent.
Reciprocal wills are a popular estate planning option for spouses. When creating reciprocal wills, each spouse creates an individual will that is identical to their spouse’s will (often called “mirror wills” for this very reason). Reciprocal wills usually include reciprocal provisions (e.g., each spouse leaves their assets to the other spouse on death).
Despite their reciprocal nature, reciprocal wills – like individual wills – can be updated individually by each spouse without requiring their partner’s consent.
While not a will, joint ownership is another excellent alternative to joint wills for some assets. Joint ownership is commonly used for significant assets, such as the family home and bank accounts. When an asset is owned jointly, this typically means that if one of the joint owners dies, the other owner will benefit from the “right of survivorship” and automatically become the sole owner of the property.
Trusts are another great option for spouses who wish to create a “joint” estate plan. A trust allows an estate planner to transfer assets to a trustee, who will then manage and distribute the trust assets according to the estate planner’s instruction. Trusts can also give a spouse some control over how their assets are handled after their death (for example, you can create a testamentary trust to support your surviving spouse but direct that any remaining assets are passed on to your children at a certain time).
Bonus: Health Care and Incapacity Planning
While health care and incapacity planning don’t necessarily fall under “estate planning,” these issues are essential considerations, especially for spouses. Creating powers of attorney allows spouses to make medical and financial decisions in the event of one spouse’s incapacity, ensuring that each spouse – and their property – is cared for if they cannot care for it or themselves.
Are Joint Wills Legal in Ontario? Final Thoughts
Joint wills aren’t explicitly “illegal” – however, they come with significant risks and are rarely – if ever – used by Ontario lawyers. There are many better and less risky estate planning options available to Ontario spouses that provide the flexibility and individual freedom necessary to minimize issues down the line.
It’s critical to remember that every individual’s estate plan will look different. The best approach for you (and your spouse) will depend on your unique goals and circumstances. For assistance with your estate plan – whether you’re ready to make your first estate plan or revisit a previous one – consult an experienced estate lawyer who can provide you with personalized, strategic guidance tailored to your situation.
Contact the Estate Lawyers at Tierney Stauffer LLP for Comprehensive Estate Planning
At Tierney Stauffer LLP, our skilled team of estates lawyers take a client-focused approach to our work. We provide clients with innovative guidance through the estate planning and administration process. Call us at 1-888-799-8057 or contact us online to set up a consultation with an experienced wills and estates lawyer.