In Ontario, drafting a Will that includes a specialized Henson Trust generally costs between $1,500 and $3,000 CAD in lawyer fees. While a simple Will might only cost $500, investing in a Henson Trust is critical to ensure a disabled child does not lose their monthly Ontario Disability Support Program (ODSP) benefits when they inherit your estate.
As a parent in Ontario, planning for the future of a child with a severe disability requires extraordinary care. Whether you live in Toronto, Ottawa, or Thunder Bay, standard estate planning rules do not apply when your child relies on the Ontario Disability Support Program (ODSP). If you pass away and leave a traditional inheritance to a child on ODSP, you could instantly disqualify them from receiving their vital monthly provincial income and prescription drug coverage.
To prevent this financial disaster, Ontario parents use a “Henson Trust”-a specialized testamentary trust named after a landmark Canadian court case. 📍 By placing the inheritance inside a Henson Trust, the money technically belongs to the trust, not the child. The trustee you appoint has “absolute discretion” over how and when to spend the money. Because the child cannot legally demand the funds, the government cannot count the trust as the child’s personal asset. This guide breaks down the steps to creating a Henson Trust, the lawyer fees involved, and the timelines for securing your child’s future.
Step-by-Step Process in Ontario
Creating a Henson Trust is not a DIY project. A single wrong word in the trust document can give the child too much control, destroying the ODSP protection. You must work with an Ontario estate lawyer who specifically understands disability law.
Step 1: The Initial Estate Consultation
The process starts by meeting an estate lawyer. You will discuss your total net worth, your child’s specific diagnosis, and their long-term care needs. 👨💼 The lawyer needs to confirm that your child actually qualifies for ODSP (or will qualify as an adult) and that a Henson Trust is the correct legal tool for your family’s unique situation.
Step 2: Structuring the “Absolute Discretion”
The legal magic of a Henson Trust lies in absolute discretion. Your lawyer will draft the Will to state that the trustee has complete power to decide if, when, and how much money the child receives. The document will explicitly instruct the trustee to consider ODSP rules before making any financial distributions, ensuring the child’s primary government benefits are always protected.
Step 3: Selecting the Right Trustee
Choosing a trustee is the most important decision you will make. Because they have absolute power, they must be deeply trustworthy. 👪 Many parents in Hamilton or Mississauga choose a responsible sibling, a close family friend, or even a corporate trustee (like a bank or trust company) to manage the funds professionally. Your lawyer will also draft provisions for backup trustees in case your first choice is unable to serve.
Step 4: Addressing the ODSP Exemptions
Your lawyer will tailor the trust to take advantage of current ODSP rules. As of May 2026, ODSP allows a person to receive up to $10,000 CAD per year in voluntary gifts from a trust without clawing back their monthly cheque. The trust can also pay for “disability-related items and services” directly, such as mobility devices, specialized therapy, or home renovations, without limits.
Step 5: Executing the Final Will
Once drafted, you will return to the law firm to sign the Will in the presence of two witnesses. 📝 The lawyer will sign an Affidavit of Execution, making the Will legally binding. The Henson Trust will lay dormant until you pass away, at which point the trust automatically springs into existence to protect your child’s inheritance.
How Much Does it Cost in Ontario?
A Henson Trust requires highly customized legal drafting. Unlike a “simple Will” that leaves everything directly to a spouse, a Henson Trust is a complex legal entity embedded within your Will.
| Type of Legal Document | Estimated Lawyer Fees (CAD) | What is Included |
|---|---|---|
| Simple Ontario Will | $500 – $1,000 | Basic distribution to beneficiaries. Highly dangerous for a child on ODSP. |
| Will with a Henson Trust | $1,500 – $3,000 | Custom drafting of absolute discretion clauses, ODSP compliance checks, and detailed trustee instructions. |
| Couple’s Henson Trust Package | $2,000 – $4,000 | Mirror Wills for both parents containing the Henson Trust, plus Powers of Attorney for Property and Personal Care. |
| Corporate Trustee Fees (Future) | 1% – 2% annually | If you appoint a bank to run the trust after you die, they will charge a yearly percentage of the trust’s total assets. |
While the upfront lawyer fees are higher, this is a minor cost compared to the risk of your child losing over $16,000 CAD a year in ODSP benefits and vital medical coverage. 💵
How Long Does the Process Take?
Drafting a specialized trust requires careful review and consideration, but it is typically completed within a standard legal timeline.
- Initial Drafting: After your first consultation, an experienced Ontario estate lawyer usually takes 2 to 4 weeks to draft the Henson Trust Will.
- Client Review: You will need 1 to 2 weeks to read the complex document, ask questions, and ensure you are comfortable with the chosen trustees.
- Final Signing: The signing ceremony takes about 30 minutes at the law office, making the entire process roughly a 4 to 6-week journey.
Frequently Asked Questions (FAQ)
Will a Henson Trust affect the ODSP $40,000 asset limit?
No. Under Ontario law, the assets held inside a properly drafted Henson Trust are completely exempt from the ODSP $40,000 personal asset limit. Because the child has no legal right to demand the money, the government does not consider it their property.
Can the trust buy a house for my disabled child?
Yes. A Henson Trust can legally purchase a home or a condo for the child to live in. A primary residence is generally an exempt asset under ODSP rules, meaning it will not negatively impact their monthly income support.
Can I just use an online Will kit?
Using an online Will kit or an AI generator for a Henson Trust is incredibly dangerous. These tools generally do not use the precise, rigid legal phrasing required by the Ontario courts to establish “absolute discretion.” A minor typo could collapse the trust and ruin your child’s ODSP eligibility.
What happens to the money left over when my child dies?
Your lawyer will draft a “gift-over” clause in the Will. This dictates exactly where any remaining funds go after your disabled child passes away. Typically, parents instruct the trustee to distribute the remaining money to other surviving children, grandchildren, or a registered charity.
Can a Henson Trust be set up while I am still alive?
Yes, this is called an inter vivos (living) Henson Trust. However, living trusts are subject to much higher, immediate tax rates by the Canada Revenue Agency (CRA). Most Ontario parents prefer to use a testamentary Henson Trust, which is built into their Will and only takes effect after death.
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