What You Should Never Put in Your Will
Your will is a crucial legal document. It states how your assets will be distributed and who will care for your dependents after you pass away.
Many people in Ontario mistakenly include items in their will that can cause legal problems or delays in probate. Some mistakes can even invalidate parts of their estate plan.
Certain assets and requests should never appear in your will because they either pass outside of your estate, become public record through probate, or are legally unenforceable. Knowing what to exclude is just as important as knowing what to include.
Assets with designated beneficiaries, jointly owned property, and conditional gifts are common examples of things that do not belong in your will.
This article will explain which items you should keep out of your Ontario will. You will learn about non-probate assets, the risks of including personal information, and the types of requests that courts will not enforce.
By avoiding these mistakes, you can ensure your will is legally sound and your wishes are respected.
Understanding Non-Probate Assets in Ontario
Non-probate assets transfer directly to beneficiaries without court involvement. This means they bypass probate and are not controlled by your will.
These assets follow their own rules, regardless of your will’s instructions.
What Are Non-Probate Assets?
Non-probate assets are property and accounts that pass directly to named beneficiaries or joint owners when you die. The court does not oversee their distribution.
Your estate trustee cannot control these assets, even if your will says otherwise.
The key feature of non-probate assets is their automatic transfer. Beneficiary designations or joint ownership create a legal path that operates independently of your will.
This is why you should not try to redirect these assets through your will.
In Ontario, probate fees can reach 1.5% of your estate's value. Many people use non-probate assets to reduce these costs.
Your will cannot override beneficiary designations or ownership structures you have already set up.
Examples: Life Insurance, Retirement Accounts, and Jointly Owned Property
Life insurance policies with named beneficiaries are classic non-probate assets. The insurance company pays the death benefit directly to your listed beneficiaries.
Your will cannot change who receives these funds.
Retirement accounts like RRSPs, RRIFs, and TFSAs work the same way. When you name a beneficiary, the funds transfer directly to that person.
The account only becomes part of your estate if you name your estate as the beneficiary.
Common non-probate assets include:
Life insurance policies with designated beneficiaries
RRSPs and RRIFs with beneficiary designations
TFSAs with named beneficiaries
Joint bank accounts with rights of survivorship
Real estate held in joint tenancy
Transfer-on-death investment accounts
Jointly owned property with right of survivorship automatically transfers to the surviving owner. This includes joint bank accounts and real estate held in joint tenancy.
The surviving joint owner receives full ownership without probate.
How Beneficiary Designations Interact with Your Will
In most cases, a beneficiary designation made on a plan form takes priority over your will. If your RRSP names your daughter as beneficiary, she will generally receive those funds regardless of what your will says.
However, this is not an absolute rule. Under Section 51(1) of the Succession Law Reform Act, a later will can revoke or change a beneficiary designation, provided the will specifically refers to the plan or type of plan by name. For example, if your will explicitly states that your son is designated as the beneficiary of your RBC RRSP, that will can override an earlier form on file with the financial institution.
This exception is narrow and must be drafted carefully. It is not enough to simply say "I leave my RRSP to my son" in general terms. The will must clearly identify the specific plan or type of plan for the change to be valid.
Problems arise when people forget to update their beneficiary designations after major life events. You might write a new will after a divorce but forget to change the beneficiary on your life insurance. Unless your new will specifically addresses that policy, your ex-spouse could still receive the proceeds.
Review your beneficiary designations regularly and make sure they match your estate planning goals. An estate lawyer can help you coordinate designations on your registered plans and insurance policies with your overall estate plan to ensure everything works together.
Why Jointly Owned Property Should Not Be Included
Jointly owned property passes automatically to the surviving owner and does not form part of your estate. Including it in your will creates confusion and can lead to legal disputes.
Right of Survivorship in Joint Tenancy
If you own property as joint tenants with right of survivorship, the property automatically transfers to the surviving owner when you die. This is straightforward when property is held jointly between spouses. The right of survivorship is well-established in that context.
Your will has no control over this transfer. If you try to leave jointly owned property to someone else in your will, your wishes will generally not be followed.
The Presumption of Resulting Trust for Adult Children
The situation is significantly different when a parent adds an adult independent child to a bank account or property title as a joint tenant. Many parents do this for convenience, intending it to help with estate administration after death.
Since the Supreme Court of Canada's decision in Pecore v. Pecore (2007 SCC 17), the law presumes that an adult child added to an account or title as a joint tenant is holding that asset in trust for the estate, not receiving it as a gift. This is called the Presumption of Resulting Trust. It means the asset may still need to go through probate and be distributed according to the will, unless the child can prove that a genuine gift was intended.
This presumption does not apply in the same way between spouses, where a gift is generally assumed.
The practical lesson is that adding an adult child as a joint owner is not a straightforward way to transfer assets outside your estate. Courts may look behind the ownership arrangement, and your estate could face legal challenges. Always discuss joint ownership strategies with an estate lawyer before putting them in place.
Types of Joint Ownership in Ontario
Ontario recognizes two main types of joint ownership: joint tenancy and tenancy in common. Joint tenancy includes the right of survivorship, where your share passes automatically to the other owner.
Tenancy in common means each owner has a separate share that becomes part of their estate when they die.
Joint tenancy is common for real estate, joint bank accounts, and investment accounts shared between spouses or family members. Each owner has equal rights to the entire property during their lifetime.
When one owner dies, the survivor becomes the sole owner immediately. Tenancy in common works differently.
Your share of the property goes into your estate and follows your will. You can include property held as tenants in common in your will because it does not have the right of survivorship.
Potential Confusion and Legal Challenges
Listing joint property in your will creates confusion about your intentions. Beneficiaries may believe they are entitled to property that actually belongs to someone else through joint tenancy.
This misunderstanding often leads to family conflict and legal disputes. Courts may need to determine whether you intended to gift the property to the joint owner or simply added their name for convenience.
These legal challenges cost time and money. The uncertainty can delay the distribution of your other assets.
Your executor may face questions about why the will mentions property they cannot distribute. Joint accounts and jointly owned real estate should be reviewed with your lawyer.
Remove references to joint property from your will to avoid these complications.
The Risks of Including Beneficiary-Designated Assets
Assets with beneficiary designations pass directly to named individuals outside your will. Trying to control them through your will creates serious risks.
These designations override anything you write in your will and can disrupt your estate plan.
Registered Plans (RRSPs, TFSAs, RESPs, Pension Plans)
Do not include vague or general instructions about registered plans in your will. Beneficiary designations on these accounts typically take priority over your will unless the will specifically names the plan and clearly overrides the designation.
When you name someone directly on your RRSP, TFSA, or pension plan, those funds usually bypass your estate. This can create a serious tax problem. The Canada Revenue Agency expects your estate to pay income tax on registered accounts like RRSPs and RRIFs when the account holder dies.
If the registered funds go directly to a beneficiary while your estate has no money left to pay the resulting tax bill, the estate could become insolvent. Importantly, the CRA does not simply walk away in that situation. Under Section 160.2 of the Income Tax Act, the CRA can hold the beneficiary jointly and severally liable for the tax owing on the registered account they received. This means the beneficiary who inherited the RRSP funds could be personally required to pay the tax, even though they received the money as a direct designation.
This is a risk that many people are unaware of. Coordinate your beneficiary designations carefully with an estate lawyer to ensure your estate has enough liquidity to cover tax liabilities.
Life Insurance Policies and Proceeds
Life insurance proceeds also pass outside your will when you name a beneficiary on the policy. You cannot use your will to redirect insurance money that already has a beneficiary designation.
This can leave your estate with nothing to distribute according to your wishes. Family members who expected to inherit may get nothing if the insurance was your main asset.
If you name "the estate" as your life insurance beneficiary, the proceeds become part of your estate and follow your will. Naming an individual beneficiary might save probate fees, but it can create conflicts between family members.
Personal Requests That Should Stay Out of Your Will
You might want to document every wish for how things should be handled after you pass away, but some personal requests do not belong in your will. These items cannot be legally enforced or may become problematic when your will becomes public.
Funeral Instructions and Arrangements
Your funeral wishes can be documented in your will, but this should not be your only plan. Wills are often not read until days or weeks after death, so your funeral instructions might be discovered too late.
It is also important to understand who actually has legal authority over funeral arrangements in Ontario. Under the Funeral, Burial and Cremation Services Act, 2002, your estate trustee holds the sole legal authority and duty to arrange for the disposition of your remains. While the estate trustee is not strictly bound to follow the sentimental preferences written in your will, the will is the document that gives them their authority. If a dispute arises among family members about funeral arrangements, courts give significant weight to any instructions documented in the will, even though the estate trustee has the final right of possession of the body for burial purposes.
Create a separate letter of instruction for your funeral arrangements in addition to anything included in your will. This document should be easily accessible to your family and executor. Tell your loved ones where to find these instructions while you are still alive. The best approach is to discuss your funeral instructions directly with those who will make the decisions, rather than relying solely on a written document.
Medical Care Directives
Medical care instructions do not belong in your will. A will only takes effect after you die, so it cannot guide healthcare decisions while you are alive.
You need a separate power of attorney for personal care to handle medical decisions if you become incapacitated. This allows someone you trust to make healthcare choices for you.
Work with an estate planning attorney to ensure your medical directives are properly documented outside your will. These decisions need immediate access and legal authority that a will cannot provide.
Digital Access Credentials and Online Accounts
Never include passwords, PINs, or login credentials in your will. Your will is filed with the court as part of the probate process and could be accessed by third parties. While the will is not automatically published online for public viewing, anyone who attends the courthouse and makes a specific search request can access a filed will under the Rules of Civil Procedure. It is not broadcast to the world, but it is not truly private either.
Your digital assets and online accounts need protection through a separate, secure document. Keep an updated list of your digital accounts, usernames, and passwords in a private location your executor can access. Tell your executor where to find this information without including it in your will. Many people use password managers or encrypted files to store these details safely. Consult with an estate planning attorney about the best approach for your situation.
Conditional and Problematic Gifts
Certain types of gifts in your will can create legal problems or become unenforceable. Conditions attached to inheritances often fail in court, pets cannot legally inherit property, and beneficiaries with disabilities may lose government benefits without proper planning.
Conditional Gifts and Incentive Clauses
You cannot effectively control how beneficiaries use their inheritance after you die. Courts in Ontario usually strike down conditions that are vague, unreasonable, or violate public policy.
A condition requiring your daughter to divorce her spouse before receiving her inheritance would not be enforced. Demanding a beneficiary marry within a specific religion or achieve a certain degree often leads to court challenges.
These clauses create confusion and delays during probate.
Common unenforceable conditions include:
Requirements to end a marriage or avoid remarriage
Demands tied to religious practices or beliefs
Conditions promoting illegal activities
Vague requirements that cannot be measured or verified
Even reasonable incentive clauses can fail. For example, if you leave money to your son only if he graduates university, the court may reject this as too controlling or unclear.
The court will either remove the condition and allow the gift unconditionally or void the gift entirely. Work with an estate planning lawyer to ensure any conditions you include are clear, reasonable, and legally sound.
Leaving Inheritances to Pets
Pets cannot legally own property in Ontario. You cannot leave money or assets directly to your cat or dog in your will.
If you name your pet as a beneficiary, that part of your will is invalid. The gift will either fail or become part of your residual estate.
Your pet could end up in a shelter while the funds go elsewhere.
Instead, consider these options:
Leave your pet and funds to a trusted caregiver who agrees to care for the animal.
Create a pet trust with a trustee who manages funds for your pet's care.
Include detailed care instructions in a separate document for the caregiver.
A pet trust lets you set aside money for your animal's needs. The trustee manages these funds and ensures they are used only for veterinary care, food, and other pet expenses.
This approach protects both your pet and your wishes.
Special Needs Considerations and Trusts
Leaving a direct inheritance to a beneficiary with disabilities can eliminate their eligibility for government benefits. Programs like the Ontario Disability Support Program have strict asset limits.
If your child's inheritance exceeds these limits, they may lose support payments and other assistance.
A special needs trust solves this problem. The trustee manages the funds and uses them only for expenses not covered by government programs.
This includes recreation, education, medical equipment, and quality-of-life improvements. The trust preserves your beneficiary's access to essential benefits while still providing financial support.
You must structure it correctly with specific language that meets provincial requirements. An estate lawyer can draft a trust that protects your loved one's financial security without jeopardizing their benefits.
Unenforceable or Legally Risky Provisions
Some clauses in a will can create legal problems or become unenforceable in Ontario courts. Including these provisions can delay probate or invalidate parts of your estate plan.
Illegal, Unethical, or Discriminatory Clauses
Ontario courts will not enforce will provisions that violate public policy or discriminate against protected groups. You cannot include clauses that discriminate based on race, religion, gender, or other protected characteristics.
A provision requiring a beneficiary to marry someone of a specific faith or ethnicity would likely be struck down. Conditions that promote illegal activities are void.
The testator cannot direct inheritance funds to be used for unlawful purposes or require beneficiaries to commit crimes to receive their share. Courts also reject provisions that unreasonably restrict fundamental rights.
A clause demanding a beneficiary divorce their spouse or abandon their children to inherit would be unenforceable. While making a will gives you control over your assets, that control has legal limits.
An estate lawyer can review your will to identify problematic clauses before they cause issues during probate. DIY will kits often lack warnings about these restrictions.
Ambiguous or Outdated Provisions
Vague language in a will creates confusion and legal disputes among beneficiaries. Phrases like "my most valuable jewellery" or "a fair share" leave room for disagreement.
Courts must then decide what you meant, which may not match your intentions. Outdated information causes similar problems.
Property descriptions that no longer match current addresses or beneficiary names that don't reflect legal name changes can delay estate distribution. References to assets you no longer own or accounts you've closed create complications.
You should update your will when major life events occur. Marriage, divorce, births, deaths, and significant asset changes all warrant a review with an estate attorney.
Regular updates every three to five years help keep your will current and enforceable.
Property Rights for Minors
Ontario law restricts how minors can receive and control property. You cannot leave assets directly to someone under 18 without creating a trust or naming a property guardian.
Minors lack the legal capacity to manage substantial inheritances or sign legal documents. Without proper arrangements, the court must appoint someone to manage the minor's inheritance.
This process adds time and expense to estate administration. The Office of the Children's Lawyer may become involved to protect the minor's interests.
An estate lawyer can help you establish a testamentary trust within your will. This trust holds assets for the minor until they reach a specified age.
You can set conditions for how funds are used for education, healthcare, or living expenses.
Best Practices for an Effective Will in Ontario
A solid will requires more than just listing your assets and beneficiaries. Selecting the right executor, protecting your assets through trusts, and getting professional help can prevent costly mistakes and family disputes.
Choosing and Communicating with Your Executor
Your executor handles estate administration after you pass away. This person pays debts, files taxes, and distributes your personal property to beneficiaries.
Pick someone who is organized, trustworthy, and willing to take on the role. Many people choose a spouse, adult child, or close friend.
You can also name a professional executor like a trust company, though this costs more.
Key qualities to look for:
Lives in or near Ontario
Good with paperwork and deadlines
Able to handle potential family conflicts
Financially responsible
Talk to your executor before you finalize your will. Tell them where you keep important documents.
Explain your wishes for your estate. Make sure they understand the time commitment involved.
Name a backup executor in case your first choice can't serve. This prevents delays if something happens to your primary choice.
Integrating Trusts for Asset Protection
A living trust or testamentary trust can protect assets and control how beneficiaries receive their inheritance. Trusts are especially useful if you have young children, beneficiaries with special needs, or concerns about asset protection.
A testamentary trust is created through your will and takes effect after you die. You can set conditions like age requirements before beneficiaries receive funds.
This prevents a young adult from inheriting a large sum all at once. Trusts can also protect your estate from creditors and provide tax benefits.
They keep assets out of probate in some cases, which speeds up distribution. You can't manage trusts properly through basic will kits.
The rules are complex and mistakes can invalidate your planning.
Working with Estate Planning Professionals
Will kits work for simple estates, but most people benefit from professional help. An estate planning attorney or estate lawyer knows Ontario estate laws and can spot problems that online tools miss.
A lawyer helps with complex situations like business ownership, multiple properties, or blended families. They make sure your will meets all legal requirements and reduce the chance of court challenges.
Professional estate planning costs more upfront but saves money long-term. A proper estate plan prevents legal battles and ensures your wishes are followed.
Many lawyers offer fixed fees for basic wills, making costs predictable. Your estate lawyer can also help coordinate beneficiary designations on RRSPs, TFSAs, and life insurance policies with your overall estate plan.
Conclusion
Your will is an important legal document. Knowing what to leave out is just as important as knowing what to include. Leaving the wrong items in your will can lead to delays, family disputes, or even invalidation of the entire document.
Items that should generally never appear in your Ontario will include assets with beneficiary designations that you have not specifically addressed in accordance with the Succession Law Reform Act, passwords and digital account information, conditional gifts or behaviour requests that are vague or contrary to public policy, illegal or unethical demands, and instructions about jointly owned property held in joint tenancy without first understanding how the Presumption of Resulting Trust may apply.
Creating a legally valid will requires careful planning and attention to detail. While online resources can help, every estate is unique and may benefit from professional advice.
Contact B.I.G. Probate Law Ontario for expert help with your will and estate planning needs. Our team understands Ontario's legal requirements and can guide you through the process of creating a will that protects your wishes and your loved ones.
Reach us at 289-301-3338 or Info@probatelaw-ontario.ca to discuss your specific situation.
You can also visit probatelawgroup.ca to learn more about our services or book a free call to get started today.
Frequently Asked Questions
Certain conditions cannot be enforced through your will. Other elements like funeral wishes can be included but aren't legally binding.
Understanding these limitations helps you create a valid will that protects your estate and honours your wishes.
What types of conditions are considered invalid when drafting a will in Ontario?
Courts in Ontario will not enforce conditions that are illegal, discriminatory, or go against public policy. You cannot require beneficiaries to change their religion, marry a specific person, or remain unmarried to receive their inheritance.
Conditions that attempt to control someone's personal choices or behaviour are generally unenforceable. For example, you cannot force a beneficiary to care for an asset in a specific way once they inherit it.
Courts may strike down individual clauses or invalidate your entire will if it contains unenforceable conditions. This could result in your estate being distributed according to Ontario's intestacy laws rather than your wishes.
Can I include wishes for my funeral arrangements in my will?
You can document your funeral and burial wishes in your Ontario will. However, these wishes are not legally binding mandates that your executor must follow.
Your executor should make reasonable efforts to honour your documented funeral preferences. Communicating these wishes to family members while you're alive increases the likelihood they'll be respected.
Wills often go through probate after death, which can delay access to your funeral instructions. Consider giving a copy of your funeral wishes to your executor or family members separately so they can act quickly.
Why is it advised against naming a pet as a direct beneficiary in an Ontario will?
Pets are considered property under Ontario law. They cannot own assets or receive money directly as beneficiaries.
You should name a guardian for your pet and leave funds to that guardian to cover care expenses. A pet trust is another option that allows you to set aside money specifically for your pet's care with oversight.
Choose your pet's guardian carefully and discuss your wishes with them beforehand. Make sure they're willing to care for your pet and that you've left adequate funds for food, veterinary care, and other expenses.
What are the ramifications of including illegal requests in my will?
Any instructions that violate Canadian or Ontario law are unenforceable and can invalidate parts of your will or the entire document. Courts will refuse to carry out illegal requests.
Including illegal provisions can delay probate and estate administration significantly. Your beneficiaries may face extended waiting periods to receive their inheritance while courts sort out the validity of your will.
Your estate may incur additional legal costs if beneficiaries or your executor need to challenge illegal clauses. In extreme cases, your entire will could be declared invalid, causing your estate to be distributed according to intestacy laws.
Is it possible to allocate funds for illegal activities through a will in Ontario?
You cannot use your will to fund illegal activities or purposes. Any gifts intended for illegal use are void and unenforceable.
If you attempt to leave money for illegal purposes, courts will either redistribute those funds according to intestacy laws or to your residual beneficiaries.
Your executor has a legal duty to refuse to carry out illegal instructions. They can seek court guidance if they're unsure whether a provision in your will is lawful.
How should one handle the distribution of personal items with sentimental value in their will?
You can list specific personal items and who should receive them in your will. Be as detailed as possible when describing items to avoid confusion among beneficiaries.
Consider creating a separate memorandum of personal property that references your will. Ontario law allows you to create a document listing personal items and their intended recipients.
You can update this memorandum without revising your entire will.
Talk to your family members about sentimental items while you're alive. These conversations help prevent misunderstandings.
This ensures your loved ones know why certain items are important and who should receive them.