Estate and family law mistakes in Canada, and the official sources to check
Common mistakes with wills, beneficiary designations, powers of attorney, estates and separation in Canada, and the official sources to check.
Most estate and family disputes in Canada start with a handful of avoidable mistakes: a will signed or witnessed incorrectly, beneficiary designations that contradict the will, a joint account with an adult child that nobody explained, an old will after a marriage or separation, no power of attorney when capacity fails, an executor who distributes before the claim periods end, and separating spouses who miss limitation periods or sign without disclosure. Each has a fix, and each rule can be checked for free in the provincial statute or with a public legal information service. This guide lists the patterns and the official places to verify them.
This guide is the starting point for Pitfalls and Official Sources. General information, not legal advice.
Mistakes when making a will
| Mistake | What happens | Fix |
|---|---|---|
| A beneficiary or their spouse witnesses the will | In Ontario and other provinces the gift to them is generally void, though the will stands | Use two independent adult witnesses |
| Witnesses not present together | The will may be invalid; Ontario and BC require both at the same time | Sign with both witnesses in the room, or follow Ontario's remote rules with a licensee |
| Typed will "signed" but unwitnessed | Not a holograph will; invalid unless a court validates it | Re-sign properly |
| No gift of the residue | Part of the estate falls into intestacy | Always include a residue clause |
| No alternate executor or beneficiary | Gaps if someone dies first | Name alternates |
| Will not updated after marriage, separation, birth or move | Unexpected results, especially in Ontario after 2022 | Review after every life event |
The details are in homemade and holograph will mistakes and making a valid will by province.
Mistakes with assets outside the will
- Joint accounts with adult children. The Supreme Court of Canada's decision in Pecore v. Pecore (2007) confirmed that when a parent puts an asset in joint names with an adult child for no payment, the law presumes the child holds it in trust for the estate, unless there is evidence the parent intended a gift. Write down your intention.
- Outdated beneficiary designations. An ex-spouse can still receive an RRSP or insurance if the designation was never changed.
- RRSP to one child, tax to the estate. The estate pays the tax on a designated RRSP, which can shift the cost to other heirs.
- Probate savings that cost more. See probate avoidance and its risks.
Mistakes about capacity documents
- No power of attorney. Families then need a guardianship application or the public guardian.
- Only one document in Ontario. You need both a continuing power of attorney for property and a power of attorney for personal care.
- Quebec mandate never homologated. A protection mandate cannot be used until homologation.
- Attorney treats your money as theirs. Attorneys must keep accounts and act in your interest.
Mistakes executors make
| Mistake | Consequence |
|---|---|
| Distributing before the claim periods and the clearance certificate | Personal liability to the CRA, creditors or a successful claimant |
| Mixing estate funds with personal funds | Breach of trust; hard-to-prove accounts |
| Missing the final return deadline | Late-filing penalties and interest |
| Forgetting Ontario's Estate Information Return | Possible penalties |
| Ignoring a dependant's or spouse's deadlines | Lost rights for the claimant or exposure for the executor |
Use the executor's first steps checklist.
Mistakes on separation
- Missing limitation periods. In Ontario, equalization must be claimed within two years of divorce or six years of separation; claims after death have six months.
- Assuming common-law partners have property rights. In Ontario they do not get equalization, and in Quebec only couples covered by the new parental union regime share a patrimony. See the rights of common-law couples.
- Signing without full financial disclosure or independent legal advice. Agreements can be set aside.
- Forgetting to update wills and designations at separation, not just at divorce.
- Treating the Spousal Support Advisory Guidelines as law. They are advisory ranges; see spousal support and separation mistakes.
Disputes after death
The most common estate litigation includes challenges to capacity and undue influence, dependants' support claims in Ontario and wills variation claims in BC, and arguments about joint assets. See dependants' relief and wills variation claims.
Where to check the rules (official sources)
| Need | Official or public source |
|---|---|
| Ontario statutes | Ontario e-Laws (each statute also downloads as a Word file) |
| BC statutes | BC Laws |
| Alberta statutes | Alberta King's Printer |
| Quebec Civil Code | LégisQuébec |
| Federal tax at death | Canada Revenue Agency |
| Child support tables | Department of Justice Canada |
| Ontario estate tax return | Ontario Ministry of Finance on ontario.ca |
| Plain-language help | Steps to Justice, CLEO (Ontario); Clicklaw, Family Law in BC; Éducaloi (Quebec) |
| Legal aid | Legal Aid Ontario, Legal Aid BC, Legal Aid Alberta, Commission des services juridiques |
| Finding or checking a lawyer or notary | Law Society of Ontario, Law Society of BC, Law Society of Alberta, Barreau du Québec, Chambre des notaires |
More in free legal help for wills and family law.
When to see a professional
Book a lawyer, or in Quebec a notary or lawyer, if you have a blended family, a beneficiary with a disability, a business, property in more than one province or country, an expected challenge to the will, a separation involving a pension or business, or any deadline that may already be close.
FAQ
How do I find out if someone left a will?
Search the deceased's papers and safe deposit box, ask their lawyer, and in Quebec request searches of the Chambre des notaires and Barreau registries. In BC, search the wills notice registry. Ontario has no central will registry.
Can I get a will reviewed cheaply?
Some legal clinics, law school clinics and limited-scope lawyer services review wills for a fixed fee. Check your law society's referral service.
How do I check that a lawyer or notary is licensed?
Use the public directory of the provincial law society, the Barreau du Québec or the Chambre des notaires.
Sources
- Ontario e-Laws — Succession Law Reform Act, Family Law Act, Substitute Decisions Act, 1992
- BC Laws — Wills, Estates and Succession Act; Family Law Act
- LégisQuébec — Civil Code of Québec
- Canada Revenue Agency — taxes for someone who died
- Steps to Justice — Ontario legal information
- Éducaloi — Quebec legal information
