Legal Terms in Canadian Wills — Glossary for Non-Lawyers
Wills are legal documents, and legal documents use specific terminology that can be unfamiliar. This glossary covers the most common terms in Canadian Wills, in plain language.
People
Testator
The person making the Will. From Latin "testator" meaning "one who makes a will." The female form "testatrix" is traditional but modern Canadian usage typically uses "testator" for all genders.
Executor
The person named in the Will to administer the estate after death. Duties include locating assets, paying debts and taxes, filing final tax returns, and distributing inheritance to beneficiaries. Some provinces use "estate trustee" or "personal representative" instead of "executor."
Trustee
The person who manages property held in a trust. Different from executor — executor handles estate administration; trustee manages an ongoing trust. Often the same person serves both roles.
Beneficiary
A person or organization receiving inheritance under the Will or by other means (designated beneficiary on RRSP, TFSA, life insurance, pension).
Guardian
The person named to take care of minor children if both parents die before the children reach the age of majority.
Witness
A person who watches the testator sign the Will and confirms the signing through their own signature. Most provinces require two witnesses present together.
Things in the Will
Bequest
A gift made in a Will. Specific bequest = particular item or amount to specific person. General bequest = stated amount without identifying source. Residuary bequest = the remainder after other gifts.
Residue
What's left of the estate after specific bequests, debts, taxes, and expenses. The residue clause governs the largest portion of most estates.
Codicil
An amendment to an existing Will. Codicils can change specific provisions without replacing the whole Will. Modern practice often prefers full Will replacement.
Per stirpes
Latin for "by branch." Distribution method where a predeceased beneficiary's share passes to that beneficiary's own descendants.
Example: "To my three children Anna, Brian, and Carol per stirpes." If Brian dies before testator leaving two children, those two grandchildren split Brian's third; Anna and Carol still take their thirds.
Per capita
Latin for "by head." Distribution method where only surviving beneficiaries take.
Example with same scenario: Anna and Carol take 1/2 each; Brian's two children get nothing.
Trust
A legal structure where one person (trustee) holds property for the benefit of another (beneficiary). Trusts can be created by Will (testamentary trust) or during lifetime (inter vivos trust).
Power of appointment
Authority given in a Will allowing someone (often the executor) to decide specific distributions within parameters set by the testator.
Legal concepts
Testamentary capacity
The mental capacity required to make a valid Will. Governed in Canada by the Banks v. Goodfellow test — testator must understand the nature of the act, the extent of property, the moral claims of others, and be free from delusion affecting the disposition.[4]
Intestacy
Dying without a valid Will. Provincial intestacy law then distributes the estate per a statutory formula.
Probate
Court process of validating the Will and authorizing the executor. Not required for all estates; depends on asset structure and provincial law.
Letters of Administration
Court grant when there's no Will (intestacy) or no executor able to act. The administrator (analogous to executor) administers the intestate estate.
Dependant relief / Wills variation
Provincial laws allowing certain family members (typically spouse, dependent children, sometimes adult children in BC) to challenge a Will that doesn't provide adequately for them. Specific to each province; BC's framework is the most flexible.
Undue influence
Coercion overpowering the testator's free will. A successful undue influence challenge can invalidate the Will.
Suspicious circumstances
Circumstances suggesting the Will may not reflect the testator's true wishes — e.g., substantial bequest to caregiver, isolation of testator, departure from prior Wills. Under Vout v. Hay (SCC 1995), suspicious circumstances shift the burden of proof to the proponent of the Will.[3]
In terrorem clause (no-contest clause)
A Will provision threatening beneficiaries with loss of their gift if they challenge the Will. Enforceability in Canada is mixed and varies by province.
Types of Wills
Formal Will (typed Will)
Standard typed and witnessed Will. Requires testator signature plus two witnesses present together (in most Canadian provinces).
Holograph Will
A Will entirely in the testator's handwriting and signed. Doesn't require witnesses where recognized (Ontario, Alberta, Saskatchewan, Manitoba, New Brunswick, Newfoundland, NWT). Not traditionally recognized in BC, NS, PEI (though substantial compliance provisions may apply).
Mutual Wills
Wills made between two people (often spouses) where each agrees not to change their Will without the other's consent. Creates enforceable obligations.
International Will
A specific form meeting UNIDROIT convention standards. Recognized internationally. Less common but useful for testators with multi-jurisdictional concerns.
Mirror Wills
Wills by spouses where each leaves to the other, then to children. Common pattern. Not the same as mutual Wills — mirror Wills can be changed independently.
Other terms
Affidavit of execution
A sworn statement from a witness confirming the Will was properly signed. Often attached to or filed with the Will. Simplifies probate.
Probate fees / Estate Administration Tax (Ontario)
Fees charged by the court for probate. Varies significantly by province — abolished in Manitoba (2020); Ontario charges 1.5% on estate value over $50,000, and several provinces (Nova Scotia currently highest) charge more than Ontario.[5]
Capital gains at death / Deemed disposition
For income tax purposes, all capital property is deemed sold at fair market value at death. Triggers capital gains tax on the final return.
Spousal rollover
Special tax treatment where capital property passing to a spouse is rolled over at the deceased's cost base (no capital gains until spouse later disposes or dies). Available for property passing through Will or through spousal trust.
Common-law partner
Person living in a marriage-like relationship without legal marriage. Provincial definitions vary on cohabitation period required and rights conferred.
Domicile
The country and province where a person has their permanent home. Different from residence (where you currently live). Domicile determines applicable law for estate matters in many situations.
Lex situs
Latin for "law of the place." Real estate is generally governed by the law of the place where it's located (lex situs) regardless of testator's domicile.
What we focus on at It's Simple Will
The Will Creator uses plain language throughout — you don't need to know these terms to make a Will. We use the technical terms only where they have specific legal meaning (executor, beneficiary, residue, per stirpes). Most terms are explained inline.
Related guides
Citations & sources
- [1]Canadian Bar Association — Wills, Estates and Trusts Section — Canadian Bar Association
- [2]CanLII — Canadian Legal Information Institute — CanLII
- [3]Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876 — Supreme Court of Canada / CanLII
- [4]Banks v. Goodfellow (1870), LR 5 QB 549 — capacity test adopted in Canada via Vout v. Hay, 1995 CanLII 105 (SCC) — Supreme Court of Canada / CanLII
- [5]Estate Administration Tax — Government of Ontario — Government of Ontario
Frequently asked questions
What's a testator?
The person making the Will. From Latin 'testator' meaning 'one who makes a will.' Female form sometimes 'testatrix' though modern Canadian usage typically uses 'testator' for all genders. The testator's signature, witnesses, and capacity at the moment of signing determine the Will's validity.
What's the difference between executor and trustee?
Executor administers the estate after death (locates assets, pays debts, files taxes, distributes inheritance). Trustee manages property held in a trust (which can be established by Will or during lifetime). Often the same person serves both roles but they're distinct functions. The executor's job ends when the estate is distributed; a trustee's job continues as long as the trust exists.
What's 'per stirpes'?
Latin for 'by branch.' A distribution method where if a beneficiary predeceases the testator, that beneficiary's share goes to their own descendants (children, grandchildren). Most common Canadian Will distribution method. Alternative is 'per capita' (by head) where surviving beneficiaries take equally regardless of predeceased beneficiaries' descendants.
What's the difference between probate and the Will?
The Will is the document expressing the testator's wishes. Probate is the court process of confirming the Will is valid and authorizing the executor to act. Probate isn't required for every estate; small estates and estates where all assets pass outside the Will (joint accounts, designated beneficiaries) may not need probate.
What's intestacy?
Dying without a valid Will. When this happens, provincial intestacy law distributes the estate per a statutory formula — typically to spouse first, then children, then more distant relatives in priority order. Specific to each province. Often the intestacy outcome doesn't match what the deceased would have wanted.
What's a codicil?
An amendment to an existing Will. The codicil changes specific provisions of the original Will while leaving the rest intact. Modern practice often prefers full Will replacement over codicils for clarity; multiple codicils can complicate interpretation.