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Wills, trusts and gifts

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Family Law and Wills

Family Law and Wills often go together in many circumstances.

A Will refers to a formal document which specifies the division of a person’s estate and assets upon their death.

How is Wills and Family Law connected?:

A parent can make a Will specifying their wish for the custody of their children once they die.

In the event of your passing away, you can indicate with whom you want the child to live, in case you don’t want the child to live with the other parent. The Will states your preferences regarding the custody of your child upon your death.

Legal custody of the children cannot be given in the Will. Only the wishes of the parent making the Will can be stated. When the children go to live with a person upon your death, that person will need to apply for the legal custody of the children.

Your Will is not final though, as the other parent can also request custody of your child irrespective of what the Will states. Ultimately, the judge has the last word as the best interests of the children will always be given priority.

Involving an experienced lawyer in drafting the Will is advisable to ensure the Will is drafted correctly. If it’s not prepared correctly, it may be deemed invalid.

Do the family law courts deal with Wills and Power of Attorney?

Family Law does not deal with Wills. The Superior Court of Justice governs all the civil proceedings in Ontario involving Wills and Estates. Many times, there are overlaps of Family Law and Estate Law matters such as:

  • Upon a person’s death, a family member believes that their adequate share has not been received from their estate as they are still a dependent.
  • Circumstances when a person claims an asset which has been assigned to another person as per the Will;

Do you have a Will and are you getting divorced?

Upon divorce, few sections of your Will may become invalid. Clauses in the Will assigning any gift or benefit to your ex-spouse or appointing them as your personal representative or executor is liable to be revoked based on:

  • The terms and conditions of a marriage contract, court order, separation agreement, minutes of settlement; and
  • The fact whether the Will was drafted earlier or later than the date of agreement or order
  • While drafting separation agreements, taking independent legal advice from a skilled lawyer is advisable to make sure that the terms and conditions of the Will are not affected by life events like divorce.

Do you have a Will and are you getting married?

The Will is deemed to be invalid once you get married. It will be cancelled or revoked as you are deemed to be unaware of your marriage at the time the Will was drafted.

To make sure your Will remains valid even after your marriage, include a statement in the Will mentioning your upcoming wedding with the name of the person you are getting married to.

How We Can Help

At Nanda & Associate Lawyers, our excellent Family Law lawyers help in making effective representation for matters involving Family Law and Will, personalised to your situation. They understand your specific circumstances and provide tailored and customized solutions for each of them. Many legal complexities exist in matters which involve both Wills and Family Law matters, and an experienced family law lawyer can help you to navigate better.

Our Mississauga Family Law Lawyers are available for a no-obligation free consultation. Come and experience our quality legal counsel and personalized care we give to each client.


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