To keep your Ontario Will clean and easy to read, you can use a formal memorandum to distribute personal items like jewellery, artwork, and furniture. To be legally binding in Ontario, this document must be explicitly referenced in your main Will and signed before or at the exact same time as the Will itself.
When planning your estate, it is natural to want specific personal items to go to specific people. You might want your daughter in Toronto to receive your grandmother’s wedding ring, or your son in Ottawa to inherit a vintage watch. However, listing dozens of individual items directly in your Last Will and Testament can quickly turn a clear legal document into a cluttered, confusing inventory. Furthermore, if you sell an item or buy a new one, you would have to formally rewrite your entire Will to make a simple update.
Ontario estate law provides a highly practical solution to this problem: the formal memorandum. 📝 Instead of clogging up your primary Will, you can group your personal property (often referred to legally as “chattels”) into a separate list. Generally, most applicants in this province choose to use either a legally binding incorporated memorandum or a non-binding “precatory” wish list. Understanding the difference, and how to execute them properly, is essential for a smooth estate administration.
Step-by-Step Process for Using a Memorandum in Ontario
Using a memorandum correctly requires careful legal drafting. If you make a mistake in how the list is referenced, your executor may not be legally allowed to follow your instructions. Here are the steps your law firm will generally guide you through.
Step 1: Drafting the Reference Clause in Your Will
For a memorandum to be legally binding, your main Will must contain a specific clause that “incorporates the document by reference.” The wording must clearly identify the memorandum, stating something like, “I leave my personal chattels to be distributed in accordance with a memorandum dated May 1, 2026, stored with this Will.” Without this exact reference clause, the list has no legal power.
Step 2: Creating the Itemized List
You must write out the list of items with absolute clarity. Avoid vague descriptions like “my favourite painting.” 🖼️ Instead, detail the items precisely: “The 1980 Group of Seven landscape painting located in the living room.” Next to each item, clearly write the full legal name of the beneficiary who is to receive it. Remember, a memorandum can only be used for physical personal items (chattels); it cannot be used to give away real estate, cash, or investments in your bank accounts.
Step 3: Signing the Memorandum (Timing is Critical)
The most important rule in Ontario regarding a binding memorandum is the timing of your signature. The list must be in existence and signed before or at the same time that you sign your main Will. You cannot sign your Will on a Monday and then write a binding memorandum on a Friday. If the list is created after the Will is signed, it is legally invalid as a binding document.
Step 4: Considering a Precatory Memorandum
If you want the flexibility to change your mind frequently without paying a lawyer to update your Will, you can use a non-binding (precatory) memorandum. 💭 In this scenario, your Will simply leaves all your personal items to your executor and expresses a “wish” that they distribute them according to any notes you leave behind. This allows you to rewrite your list whenever you want, but it relies entirely on your executor honouring your wishes voluntarily.
How Much Does it Cost in Ontario?
Proper estate planning is a vital investment that prevents family disputes and costly litigation over sentimental items.
- Law Firm Fees: Hiring an Ontario lawyer to draft a comprehensive Will that properly incorporates a memorandum usually costs between $600 and $1,200 CAD.
- Codicil Fees: If you use a binding memorandum and later want to update the list, you must execute a formal codicil (an amendment to the Will). A lawyer typically charges $250 to $500 CAD for this service.
- Executor Disputes: If you use a DIY Will and fail to incorporate the memorandum correctly, fighting over the items in court can cost your estate thousands of dollars in legal fees.
How Long Does the Process Take?
Drafting your Will and the accompanying memorandum is a fairly quick process. Most law firms in Ontario can complete your entire estate plan within 2 to 4 weeks from your initial consultation. When the time comes to administer the estate, distributing personal chattels is usually one of the fastest parts of the process. Once the Superior Court of Justice grants probate (which can take 4 to 8 months), the executor can hand out the physical items immediately, long before the financial accounts are fully settled.
Binding Memorandum vs Precatory Wish List
| Feature | Binding Memorandum | Precatory (Non-Binding) List |
|---|---|---|
| Legal Enforceability | 100% enforceable by the courts. | Not legally enforceable; relies on trust. |
| Ability to Update | Requires a new Will or formal Codicil. | Can be updated, crossed out, or rewritten anytime. |
| Timing of Creation | Must exist before the Will is signed. | Can be written years after the Will is signed. |
Frequently Asked Questions (FAQ)
Can I use a memorandum to give someone my car?
Yes, a vehicle is considered a personal chattel in Ontario. You can list a car, motorcycle, or boat on your memorandum. However, you cannot use it to transfer the title of a house or land.
What happens if an item on the list is lost or sold before I die?
If a specific item listed in the memorandum no longer belongs to you when you pass away, the gift simply fails (this is legally known as “adeem”). The beneficiary does not receive cash compensation in place of the missing item.
Do I need witnesses to sign the memorandum?
If the memorandum is explicitly incorporated into your Will, it is best practice to sign it in front of the exact same two witnesses who are watching you sign your primary Will. This ensures there is zero doubt about its authenticity.
Can I put cash amounts in the memorandum?
No. A memorandum is strictly for tangible personal property (chattels). If you write “I leave $5,000 to my nephew” on a memorandum, it will generally be ruled invalid. Cash gifts must be written into the main body of the Will.
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