One important reason to make a Will is to appoint a guardian and custodian for your minor children, in case you pass away before they reach the age of majority (18 in Ontario).

What Can You Do in Your Will?

Many people assume that when you name a guardian and custodian in your Will, that is the end of the story. However, this is not the case.

Under the Children’s Law Reform Act, a person can make a Will which appoints a guardian and custodian of minor children.  You may also appoint an alternate guardian in the event that the one appointed cannot act. However, the appointment is considered temporary as it is effective for a period of 90 days from the time of your death.  After this period, the person or persons will need to bring an application to the Court to be appointed for permanent guardian.

Despite this safety process of your wishes, the guardianship clause in your Will serves as evidence that the person or people you have named are who you want to be the guardians and custodians of your children.  This can be especially helpful in a large family where several people may otherwise step forward as potential guardians, or where the guardian you would choose may be a friend or more remote family member. While not determinative, the Court will give significant weight to your guardianship wishes as stated in your Will.

Applying for Guardianship

To become a permanent Guardian, the applicant must bring a Court application to be appointed. The application is essentially to demonstrate to the Court that the applicant is the appropriate Guardian for the child or children, and has the means, willingness, and ability to act in this role.

Before being appointed, the proposed guardian must submit a guardianship plan to the Court, explaining his or her plans for looking after the child and the assets left to the child.

The Estate Trustee (if not the same person as the Guardian) will work with the Guardian to make assets available in accordance with the management plan.

Some people decide to leave gifts to their guardians as a way to thank or partially compensate them for taking on this role. This is permissible and there is no limit on what you can do.

We can help.


Related Posts


Introduction to Estate and Substitute Decision Planning

2 Minute Read  There is a lot more to estate planning than simply creating a Will or Power of Attorney. In today’s article, we outline all of the possible components that can be included within an estate and substitute-decision plan. In combination, these various components can work together to ensure our wishes are fulfilled during

Read More »

What is Elder Abuse?

2 Minute Read If you have an older adult in your life, such as a grandparent or an aging parent, it is important to raise self-awareness of elder abuse as it is often considered an underreported ‘hidden’ crime, many times occurring behind closed doors and at the hands of ‘trusted’ people. According to Elder Abuse

Read More »
Erin Lewis

What is Elder Law?

June 12, 2024 – 2 Minute Read In Ontario, there are almost 3 million older adults residing in the province, with less than 2 million adults becoming seniors in the next 10 years. As the population ages, it is increasingly important to raise awareness amongst seniors and their loved ones on how elder adults can

Read More »

Ontario’s Update Estate Laws

Last fall the Ontario government took steps to simplify the province’s estate laws. The changes took effect as of January 1, 2022, and are aimed to make the probate process more accessible. The good news:  the number of forms has been reduced from 58 to 23.  The forms are easier to understand and complete alongside

Read More »

I Just Bought a Condominium . . . Now What?

A condominium is a type of legal ownership where the property is divided between privately owned units and common elements. Each unit owner owns the unit as well as a proportion of common elements, which includes such things as hallways, lobbies and elevators and there are also “exclusive use common property elements,” such as balconies,

Read More »

Challenges to Testamentary Documents

Quite often we hear about someone’s Will being challenged.  The most common grounds being: proper execution; knowledge and approval of the contents of the Will; fraud; lack of testamentary capacity; and undue influence and suspicious circumstances. A person who wishes to challenge a Will as being invalid must file a Notice of Objection with the

Read More »
Scroll to Top