28 Nov The Will Kit: Wills Explained: The Introductory Clause

We will be starting a series where we explain a different part of a Will ¹ signed in the Province of Ontario in order to share basic practical knowledge of this important legal document, which can save you taxes and create a social safety net for your loved ones.

We begin with the introductory clause. In our next newsletter, we will examine the revocation clause.

Basic Introductory Clause

The introductory clause in a Will identifies the testator (i.e. the person signing the Will) and states where he or she resides. It typically takes the following form:

I, JOHN DOE, of the City of Ottawa, in the Province of Ontario, declare that this is my Last Will and Testament, made this XXX day of January, 2014.

Correctly identifying the client ensures that the right Will is probated, that is to say, approved by a court. It also ensures that the probate certificate issued by the court, which appoints the Executor (also called Estate Trustee), has the same name as that which appears on the testator’s other legal and financial documents. If the client is referred to by another name, this should be mentioned in the introductory Clause in the form of “also known as Jonathan Doe”. Including common names makes sure that the Will matches the name on other documents.

Identifying the place where the client resides assists the court in differentiating the testator from other individuals who have a similar name. Remember, when a Will goes to court to be probated, it is not the only Will being examined by a judge. Along with it are countless other Wills containing the names of other testators. As well, it is important to avoid the risk of a live individual being incorrectly identified as the testator of someone else’s Will. It will also assist in knowing in which probate court to bring the probate application. Finally, for income tax purposes, it is also helpful to include a statement of legal residence.

If a testator is preparing separate Wills to deal with different categories of assets (e.g. assets located in multiple jurisdictions, or assets that require probate to administer vs. those that do not require probate), the introductory clause should identify the fact that the scope of the Will is restricted, i.e. to assets of a certain jurisdiction, or to assets to do/do not require probate.

Introductory Clause For A Will In Contemplation Of Marriage

Marriage revokes a Will. In order to prevent this from happening, you need to make your in Will “in contemplation of marriage.” This requires the introductory clause to have an additional statement. It could read as follows:

I, JOHN DOE, of the City of Ottawa, in the Province of Ontario, declare that this is my Last Will and Testament made in contemplation of my marriage to JANE SMITH and is intended to take effect whether or not the marriage takes place.

Section 16 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) provides that a Will is revoked by marriage except where there is a declaration in the Will that it is made in contemplation of marriage. The purpose of this is intended to protect spouses and children of the marriage by at least ensuring they will benefit under the rules of intestacy if the testator does not make a new Will.

In Owers v. Hayes (1983), 16 E.T.R. 61, 43 O.R. (2d) 407, 1 D.L.R. (4th) 280 (Ont. H.C.), the court held that the handwritten note in which the testatrix contemplated marriage was held to be a valid holographic codicil, i.e. amendment to the Will. As a result, the Will she had executed before her marriage had been revived.

In sum, even a clause as basic as the introductory clause in a Will requires careful analysis of your situation, including place of residence, the location of your assets, and your intention to marry.