Wills and Powers of Attorney for Newcomers to Canada

Why newcomers need these documents more than most

Newcomers typically face a combination of complications that locally-born Canadians do not:

• Assets in two countries. Bank accounts, property, or investments left in your country of origin are generally not governed by your Canadian will. Many people need a separate will in each country — prepared with local legal advice — so the two documents do not accidentally cancel each other out.
• No local support network. Without relatives nearby, there may be nobody obvious to sort out your affairs. A will names an executor to do exactly that.
• Different family structures. Canadian intestacy rules (the rules that apply when there is no will) may distribute property very differently than the laws or customs of your home country.
• Language and unfamiliarity. Legal documents in English or French can hide surprises. Many lawyers work with interpreters or offer services in community languages — it is worth asking.

Basic will requirements — and why the province matters

Wills in Canada are governed by provincial (or territorial) law, not federal law. The requirements are similar in structure but differ in detail, so always check the rules of the province where you live:

• Formal wills. In most provinces, a typed or printed will must be signed by you in the presence of two witnesses who are present at the same time, and the witnesses must also sign in your presence. Witnesses generally should not be beneficiaries or the spouses of beneficiaries.
• Holograph (handwritten) wills. In provinces such as Ontario and Alberta, a will written entirely in your own handwriting and signed by you can be valid without any witnesses. Note that a pre-printed form with handwritten additions is not a holograph will, and some provinces (such as British Columbia and Prince Edward Island) do not recognize holograph wills at all — another reason the province check matters.
• Quebec is different. Quebec follows civil law rather than common law and recognizes three forms of will: the notarial will (prepared by a notary in the presence of a witness, original kept by the notary, and — uniquely — does not need to go through a verification/probate procedure after death), the holograph will (entirely handwritten and signed, but it must be verified by a notary or court after death), and the will made in the presence of witnesses (also requiring verification after death).

Most provinces also set a minimum age for making a will (commonly 18, with limited exceptions) and require the will-maker to be mentally capable and to act without undue influence.

Powers of attorney: property and personal care are separate jobs

A power of attorney (POA) lets someone you choose make decisions for you if you become mentally incapable. In Canada, financial decisions and health/personal-care decisions are handled by separate documents, and the names differ by province:

• Ontario (terminology under the Substitute Decisions Act): a Continuing Power of Attorney for Property covers bank accounts, real estate, investments, and legal/financial affairs; a Power of Attorney for Personal Care covers health care, where you live, and daily care decisions.
• British Columbia: an Enduring Power of Attorney covers finances, while health and personal-care decisions are made through a Representation Agreement (a standard Section 7 agreement for routine matters, or a broader Section 9 agreement that can include end-of-life decisions).
• Other provinces use their own names — for example, personal directives in Alberta and Nova Scotia, and a mandate of protection in Quebec.

A key point for newcomers: a POA from your home country is often not accepted by Canadian banks and hospitals without question, so many newcomers prepare fresh documents in the province where they now live. An ordinary POA normally ends when you lose capacity; only a continuing/enduring POA (or the provincial equivalent) survives incapacity — the wording of the document matters.

What happens without a will: intestacy rules vary by province

If you die without a valid will, your estate is divided according to your province's intestacy formula — not according to your wishes, and not necessarily according to your home country's customs. Some features that surprise newcomers:

• The surviving spouse's preferential share differs. In Ontario, a married spouse takes the first $350,000 of the estate before the remainder is divided with children (increased from $200,000 effective March 1, 2021). In British Columbia, the preferential share is $300,000 if all children are also the spouse's children, or $150,000 if any child is from another relationship — with the residue split 50/50 between spouse and children. Amounts in other provinces are set by their own statutes; check the official site of your province.
• Common-law partners are treated inconsistently. In British Columbia, a partner in a marriage-like relationship of at least two years can count as a spouse for intestacy. In Ontario, a common-law partner has no automatic right to inherit under intestacy rules and would need to make a separate court claim.
• Foreign assets complicate everything. Your Canadian intestacy (or even your Canadian will) may not effectively control property abroad. Real estate is usually governed by the law where it sits.

Where to store the documents, and when to update them

A will only works if it can be found. Common approaches: keep the original with your lawyer or notary, keep a copy at home in a known location, and tell your executor and family where everything is. In Quebec, a notarial will is registered with the Chambre des notaires' Register of Testamentary Dispositions, which solves the search problem.

Review your will and POAs after any of these events:

• Marriage. In some provinces, marriage revokes an existing will unless the will was made in contemplation of that marriage — check your province's current rule.
• Children are born or adopted. Minor children especially change the picture (guardianship choices, trusts for inheritances).
• You move. A move to another province — or another country — can change which law applies. Documents that were fine in Ontario may need review in Quebec or in your country of origin.
• Major financial changes. Buying property abroad, opening foreign accounts, or receiving a large inheritance all deserve a review.

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