Estate planning in Canada often involves more than simply deciding who inherits major assets like real estate, bank accounts, or investments.
Many Canadians also want to leave specific instructions about sentimental or personal belongings such as jewelry, artwork, family heirlooms, collectibles, furniture, or other household items.
One estate planning tool that sometimes comes up in this context is a personal property memorandum. This is a common practice in the United States.
But does Canadian law actually allow a testator to use a personal property memorandum instead of listing these gifts directly in a will?
The short answer is Yes, in some circumstances — but the legality of the memorandum depends heavily on provincial and territorial law, as well as how the memorandum is drafted and incorporated into the will.
What Exactly Is a Personal Property Memorandum?
A personal property memorandum is a separate written document that accompanies a Will and outlines how the testator wants certain personal belongings distributed after their death.
Rather than revising the Will every time the testator wants to change who receives a watch, antique collection, artwork, or family keepsake, he or she can prepare a separate memorandum listing those items and the intended recipients of each item.
For example, a memorandum may state:
- Gold wedding ring goes to my daughter Sarah
- Antique grandfather clock goes to my son Michael
- Coin collection goes to my grandson Daniel
- Family photo albums go to my sister Jennifer
The primary advantage of using a personal property memorandum is flexibility. Unlike your formal Last Will and Testament, the memorandum is generally easier to update without rewriting the entire estate plan.
Are Personal Property Memoranda Legally Binding in Canada?
In Canada, estate, probate and succession laws fall under provincial and territorial jurisdiction, meaning there is no single federal rule governing personal property memorandums. (Canadian Lawyer: "Wills and estates law in Canada: the basics")
Generally speaking, Canadian law recognizes two different types of memorandums connected to a will:
1. Binding Memorandum (incorporated by reference)
A personal property memorandum can become legally binding if it is properly "incorporated by reference" in the body of the will.
For incorporation by reference to be legally valid under common law principles:
- The memorandum must already exist when the will is signed.
- The will must specifically refer to the memorandum.
- The memorandum must be clearly identifiable.
If these requirements are met, the memorandum can effectively be deemed part of the will itself. (Alexander Holburn Beaudin + Lang LLP | "Memorandum to a Will")
The downside is that once the personal property memorandum is incorporated into the will, changes usually require formal will amendment procedures such as a codicil or a new will.
2. Non-Binding Memorandum of Wishes
Some testators create what is known as a memorandum of wishes, which simply provides guidance to the executor.
This type of memorandum:
- is usually not legally binding,
- can be changed easily, and
- allows the executor to use their discretion in distributing personal effects.
However, beneficiaries may challenge the executor if the memorandum conflicts with the formal will. (Devry Smith Frank LLP | "What is a memorandum of wishes?")
Provincial and Territorial Considerations
Because succession law varies across Canada, treatment of personal property memoranda differs by jurisdiction.
ONTARIO
Ontario law does not specifically create statutory authority for standalone personal property memoranda in the way some U.S. jurisdictions do.
However, Ontario courts recognize incorporation by reference where common law requirements are satisfied.
Important considerations:
- Memorandum must exist when the will is executed
- Future amendments generally require formal will changes
- Informal memoranda are generally considered expressions of wishes only
Relevant legislation:
Succession Law Reform Act, RSO 1990, c. S.26
BRITISH COLUMBIA
British Columbia generally permits incorporation by reference under estate law principles.
BC’s Wills, Estates and Succession Act (WESA) provides more flexibility in some will formalities compared to other provinces.
Important Considerations:
- Informal personal property lists are not automatically legally binding.
- Courts may consider testamentary intention where disputes arise.
Relevant legislation:
Wills, Estates and Succession Act, [SBC 2009] Chapter 13
ALBERTA
Alberta law permits incorporation by reference where legal requirements are satisfied under the provincial Wills and Succession Act.
Important Considerations:
- Existing memorandum must be clearly identified in the will.
- Executors should avoid relying on informal lists that contradict the will.
Relevant legislation:
Wills and Succession Act, SA 2010
SASKATCHEWAN
Saskatchewan generally follows common law principles. A personal property memorandum may be enforceable if properly incorporated into the will, but a separate unsigned list prepared after execution of the will may not be binding.
Relevant legislation:
The Wills Act, 1996 c W-14.1
MANITOBA
Manitoba allows incorporation by reference principles under estate law, but testators should exercise caution when relying on separate memorandums for asset distribution.
Relevant legislation:
The Wills Act, CCSM c. W150
QUEBEC
Quebec follows civil law, which differs significantly from common law provinces. The province does not generally recognize informal personal property memorandums attached to wills in the same manner as common law provinces.
Important Considerations:
- Testamentary instructions usually need to comply with formal requirements under the Civil Code.
- Informal side documents may not carry legal force.
Relevant legislation:
CCQ-1991, Civil Code of Quebec - Successions
ATLANTIC PROVINCES (Nova Scotia, New Brunswick, Prince Edward Island, Newfoundland & Labrador)
These provinces generally follow common law principles similar to Ontario.
In most cases:
- Memorandums can be legally effective if incorporated by reference.
- Informal lists created after the will may not be enforceable.
Users should review province-specific wills legislation before relying on a separate memorandum.
Relevant legislation:
- Nova Scotia - Wills Act, R.S. 1989, c. 505, as amended by 2006, c. 49
- New Brunswick - Wills Act, W-9
- Prince Edward Island - Wills Act (Bill No. 31)
- Newfoundland & Labrador - Wills Act, RSNL 1990, Chapter W-10
NORTHERN TERRITORIES (Yukon, Northwest Territories, Nunavut)
These jurisdictions also largely follow common law estate principles.
In general:
- Proper incorporation by reference may make the memorandum enforceable.
- Informal post-will documents may simply guide the executor rather than create legal obligations.
Because estate law in northern jurisdictions receives less judicial interpretation, it is strongly recommended that you obtain legal advice when preparing a Will and any accompanying memoranda.
- Yukon - Wills Act, RSY 2002, c. 230
- Northwest Territories - Wills Act, RSNWT 1988, c. W-5
- Nunavut - Consolidation of Wills Act, RSNWT (Nu) 1988, c W-5
Risks of Using a Personal Property Memorandum
Although convenient, a Personal Property Memorandum can create complications. Potential risks include:
1. Ambiguity
Poorly described items may cause disputes among beneficiaries. It is essential to describe each item in sufficient detail that it can be easily identified by the executor.
Executors may struggle to interpret unclear instructions. Again, clarity and concise language are essential in order to reduce the risk of confusion.
2. Contracting the Will
If the personal property memorandum conflicts with anything contained in the formal will, the will will generally take precedence.
3. Probate Disputes
Family members may challenge the validity of a personal property memorandum that appears inconsistent with testamentary formalities.
Best Practices for Canadian Testators
If you plan to use a personal property memorandum:
- Mention the memorandum directly in your will, and ensure that you include the date on which it was signed to ensure that there is no confusion.
- Ensure that the memorandum exists when the will is signed.
- Clearly identify each item being gifted.
- Date and sign the memorandum.
- Avoid frequent informal changes without legal review.
- Review province-specific estate legislation.
- Consult an estate lawyer for any high-value or sentimental assets.
Final Thoughts
Canadian law can allow a testator to use a personal property memorandum, but enforceability depends largely on how well the memorandum is structured and the laws of the province or territory where the testator resides.
In most common law provinces, a memorandum may become legally binding if properly incorporated by reference into the will. In other cases, it may serve only as a non-binding statement of wishes for the executor.
Quebec remains an important exception because its civil law system follows different succession rules.
For Canadians who frequently update decisions about personal belongings, a personal property memorandum can be a useful estate planning tool — but only when drafted carefully and with a clear understanding of local estate law.
Additional Resources
- Government of Canada – Estate Planning Information
- Law Office of Kathleen Robichaud - What is a memorandum to a will?
- O'Sullivan Estate Lawyers - How to Deal With Personal Effects to Prevent Family fights
---
Image by Michal Jarmoluk from Pixabay
