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Tuesday, February 24, 2015

Is a will prepared in Ontario valid in other provinces or other countries?

These days, with people moving from place to place so much, I'm often asked about the validity of wills once a person moves across provincial or national borders. A reader recently raised the topic, and I thought I'd share the discussion with all of you. Here is the question and my response:

"Is a will prepared in Ontario valid in other provinces or other countries?"

This is one of those questions in which a simple "yes" or "no" answer just isn't going to be enough.

If you make a will in Ontario, then move to another province, will your will be a valid document? Yes, probably. Every province has its own laws regarding wills and probate, but generally speaking the rules about signing and witnessing will allow a will that is valid in one province to be found to be valid in another.

However, that's not the full answer to the question. All that tells you is that you'll still have a will in place if you move. What it doesn't address is whether that will - valid or not - is still going to meet your needs. As I said, the laws are different across Canada. In some ways, they are very different. For example, in Ontario, it is possible for a person to have more than one will, but that's not the case in other provinces. So, you might have two wills that on the face of them are each valid documents, but their contents are not going to work outside Ontario.

There are other examples. In some provinces, but not all, it's possible to use your will to protect a gift under the will from being considered community property. If you have a clause like that in your will you  may not realize when you move that that particular clause is no longer effective. Likewise, the matrimonial home on the death of a spouse is treated differently across the country, and local law may nullify or restrict what your current will wants done with the home.

The safest bet is to consult a lawyer in your new province. You may not need a new will, and an experienced wills lawyer will be able to tell you that once he or she reads your will and talks to you about your circumstances.

As for moving to a different country, you'd be better off assuming that your will is not going to be valid. Again, see a local lawyer once you're settled and bring along your current will for a review.

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