# Non-resident Canadian writing a Will



## JayZ80 (Feb 25, 2021)

I am a longtime non-resident of Canada with no property there and only a few bank investments and some valuables in a safety deposit box. I want to write a Will that establishes a trust to distribute my assets in Canada to my minor children who live with me abroad. Would the Will be recognized as valid if written and signed in Canada and appointing a Canadian executor? Is it possible (or required) to have a separate Will with a local executor filed in my resident country to cover my assets there?


----------



## twa2w (Mar 5, 2016)

In most, if not all, provinces, multiple wills are recognized, although not very common. Your will here should clearly state it is to deal with your Canadian assets only and that you have a separate will to deal with your assets outside of Canada, and your will here supersedes that will in terms of Canadian assets. Your lawyer would assist you with the specific wording. You may need to add a codicil to your other will to acknowledge the new Canadian will.

You have to be aware that if you have a spouse or common-law relationship, you will need advice on that. I am not sure it would apply to a non-resident, but most provinces' family law rules determine that a spouse is entitled, under an estate, to receive a similar amount to that which she would receive in a divorce - if she contested the will. Of course, if you cover her off in your other will, I suspect you will be OK, and she would not likely come to Canada to contest it for a small amount.

I assume you want your assets here to go into a trust, managed by your executor/trustee until your children are of age, at which time the assets would be distributed to the children. Keep in mind Canada just passed new rules with regards to the setup and taxation of testamentary trusts. Your trust would be a Canadian resident trust, I believe. If the income is distributed each year to the beneficiary's guardian, who I assume would be non-resident, that may change things. Your trustee may have to apply for probate and will have to file trust tax returns each year.

Unless the amounts of the bank accounts and valuables are fairly large, it may simply be easier to close them out and move them to your country of residence.

I am a little rusty on this, having retired some time ago, so perhaps Mukhang Pera will weigh in here as the resident legal expert.


----------



## Numbersman61 (Jan 26, 2015)

I recommend retaining an experienced Canadian estate lawyer who has experience in dealing with estates of non-residents of Canada. Without knowing the size of the estate, it is difficult to suggest a course of action. If the amounts are relatively small, don’t make things too complicated. Complicated estates usually result in disproportionate costs for administration.


----------



## Mukhang pera (Feb 26, 2016)

I just now cam across this and I think twa2w has made some good points.

It seems to me that a will made in Canada disposing of your Canadian assets and using a Canadian executor would serve your purpose. If the assets are all in one province, my choice would be to have a will made in that province and an executor based there.

It also strikes me as entirely possible, and a preferred course, to have a separate will with a local executor filed in your resident country to cover your assets there. You might wish to consult with a local lawyer about the prerequisites to a valid will where you are. Local law is more likely to favour granting probate to a local will rather than a foreign will. 

As Numbersman suggests, perhaps a consult with a lawyer close to where your Canadian assets are situate would be worthwhile.

BC has not seen a lot of litigation involving the jurisdictional issues you raise. A good sign perhaps. Once case, from awhile ago, while not directly on point, gives some insight into the considerations:

Armour v. Fuller S.C., Halfyard J., 2009 BCSC 409, Vancouver S077985, March 27, 2009 , 34pp.


----------

