Family Law
Emily Bartlett
Marriage vs Common Law: What Are the ...

Family law in Nova Scotia applies a distinct difference between common law relationships and marriage. While some provinces may allow common law, or cohabitation, to take on the rights and responsibilities of marriage after a certain period of time, this is not the case in Nova Scotia.

What constitutes common law?

A common law relationship is simply the act of living together in a marriage-like relationship without actually being legally married. It does not require any kind of legal process to create a common law union. The definition of common law partnership also differs depending on the laws applied. For example, the Canada Pension Plan states that two people are in a common law relationship after a year of cohabitation. The Parenting and Support Act, on the other hand, requires two years of cohabitation before a relationship can be described as common law.

Marriage vs Common Law: What Are the Differences?

Nova Scotia Wills Act Explained: Complete Guide

Your will represents one of the most important legal documents you'll ever create, yet many Nova Scotians don't realize that simple mistakes—like who witnesses your signature or how you make changes—can invalidate the entire document. The Nova Scotia Wills Act sets out specific legal requirements that determine whether your will is valid, from who can make a will to how marriage and divorce affect existing documents.

This guide explains the legal requirements for creating a valid will in Nova Scotia (including your own will), common pitfalls that invalidate wills, how life events automatically change your estate plan, and what happens when someone dies without proper documentation.

Purpose of the Nova Scotia Wills Act

The Nova Scotia Wills Act provides the legal framework that governs how you can (1) create a valid will; (2) appoint executors to manage your estate; (3) designate guardians for minor children; (4) and distribute your estate assets according to your wishes after death. This provincial legislation sets out specific requirements for writing and signing wills, establishes rules for witnessing, and determines what happens when someone dies without a valid will. The Act also includes provisions for safekeeping wills through a provincial registry and specifies how marriage, divorce, and other life events affect existing wills.

Who Can Make a Valid Will in Nova Scotia

According to the Wills Act, you can make a valid will in Nova Scotia if you're at least 19 years old and have what the law calls testamentary capacity. Testamentary capacity means you understand the nature of making a will, know what property you own, and comprehend how your decisions will affect who receives your assets.

The law assumes adults have this capacity unless someone proves otherwise. What matters is your mental competency at the exact moment you sign your own will, not your health before or after that time.

There are a few exceptions for people under 19. Minors can make valid wills if they're married, serving in the Canadian Forces on active duty, or working as sailors at sea.

Four elements determine whether your will is legally binding under the Wills Act. Missing even one of these can invalidate your entire document or specific parts of it.

  1. Age and Testamentary Capacity: You typically have to be at least 19 years old to make a will in Nova Scotia. Being of "sound mind" means you understand what property you own, who your natural beneficiaries are (like your spouse and children), and how your decisions will distribute your estate after you die.

  2. Writing and Signature Requirements: Your will can be typed or handwritten, but it cannot be spoken out loud and recorded. You sign your name at the end of the document yourself, or if you physically can't, you can direct someone else to sign on your behalf while you watch.

  3. Minimum Number of Witnesses: Two witnesses observe you signing your will. Both witnesses are present at the same time when you sign, then they each sign the document while still in your presence.

  4. Voluntariness and Absence of Undue Influence: You create your will freely without coercion, fraud, or excessive pressure from family members or others. If someone exerts influence that overpowers your independent judgment, the will or affected parts can be challenged in court later.

Witness Rules and Common Mistakes

The witnessing requirements exist to protect against fraud and confirm you signed voluntarily. However, the rules also create common pitfalls that can invalidate an otherwise well-planned will.

  1. Who Qualifies as a Witness: Witnesses are mentally competent adults who understand they're witnessing a legal document. They cannot be blind or unable to comprehend what they're witnessing, though they don't have to read or know what's written in your will.

  2. Beneficiary Witness Pitfalls: If a witness is also named as a beneficiary in your will, that person typically loses their inheritance under provincial law. This forfeiture rule extends further than you might expect—the married spouse or common law spouse of a witness-beneficiary also loses their gift. There's an important exception called the supernumerary witness rule. If you have more than two witnesses and at least two of them aren't beneficiaries, then the beneficiary-witnesses can still receive their inheritances.

  3. Location and Presence Requirements: All parties—you and both witnesses—are physically present together in the same location. You sign first while both witnesses watch, then both witnesses sign while you watch. Remote signing where people are in different rooms or locations doesn't satisfy Nova Scotia's requirements under the Wills Act.

Are Handwritten or Electronic Wills Recognized

The Wills Act takes a strict approach to will formalities, though some flexibility exists for specific situations.

  • Holographic Will Rules: A holographic will is entirely handwritten and signed by you without any typed portions. While some provinces accept holographic wills without witnesses, the Wills Act generally requires the two-witness formality even for handwritten wills. Limited exceptions may apply in very specific circumstances, but relying on these exceptions creates significant risk of your will being declared invalid.

  • Digital Signatures and Remote Witnessing: Nova Scotia currently doesn't recognize purely electronic wills with digital signatures. The Wills Act requires a physical signature on a tangible document. While some jurisdictions explored remote witnessing during the pandemic, the province of Nova Scotia maintained its requirement for physical presence when signing wills. Legislative discussions about modernizing the rules continue, but no changes have been enacted yet.

How Marriage, Divorce, or Common Law Status Affects Your Will

Significant relationship changes automatically impact your will under provincial law, even if you don't take any action to update it.

Marriage automatically revokes any will you made before getting married. Your previous will becomes void unless you specifically stated in that will you were making it "in contemplation of marriage" to your spouse by name. This means if you marry without updating your will, you'll die intestate (without a valid will) regarding assets not covered by beneficiary designations.

Divorce revokes any gifts to your former spouse and removes them as executor, but it doesn't invalidate your entire will. The rest of your will remains in effect, and your estate is distributed as if your former spouse died before you.

Common law relationships work differently. Simply entering or ending a common law relationship doesn't automatically revoke or change your will. However, common law spouses have fewer automatic inheritance rights than married spouses if you die without a will. Therefore common law spouses may be less protected if a person dies unexpectedly.

Ways to Revoke or Amend a Will Safely

You can change or cancel your will through several legally recognized methods, but informal changes often create more problems than they solve.

  • Destroying the Original: You can revoke your will by physically destroying it—burning, tearing, or otherwise obliterating it—with the clear intention of canceling it. If you're physically unable to destroy it yourself, you can direct someone else to destroy it in your presence while you watch.

  • Making a Codicil: A codicil is a legal document that amends specific provisions of your existing will without rewriting the entire thing. The codicil follows all the same formalities as your original will, including your signature and two witnesses. While codicils work well for minor changes, they can create confusion if multiple codicils accumulate over time.

  • Drafting a New Will: Creating a new will with a revocation clause is often the clearest way to make significant changes. Your new will typically includes language stating "I revoke all former wills and codicils." After signing your new will, destroy all copies of your old will to prevent confusion about which document reflects your current wishes.

Tip: Never make handwritten changes to a signed will. Crossing out names, adding provisions, or making notes in the margins can invalidate parts of your will or create ambiguity that leads to expensive court battles.

What Happens If a Will Is Invalid or There Is No Will

When you die without a valid will—whether because you never made one or your will doesn't meet legal requirements—Nova Scotia's Intestate Succession Act determines who inherits your estate. The term "intestate" simply means dying without a valid will.

Intestacy Distribution Order

The law follows a specific hierarchy based on your family relationships at death. Your surviving married spouse receives a preferential share first. After the preferential share, your spouse and children divide what remains according to a formula set out in the legislation.

If you have no spouse or children (including adopted children), your estate passes to your parents, then to your siblings, then to more distant relatives in a defined order. Common law partners who aren't registered as domestic partners have no automatic inheritance rights under intestacy rules.

Rights of the Surviving Spouse or Partner

Married spouses have significant protections under intestacy law, including the preferential share and rights to the matrimonial home. Common law partners face a much more difficult situation. Unless your common law spouse is a registered domestic partner (as required by the Intestate Succession Act), or your partner can prove entitlement under other laws, they may receive nothing from your estate in the event of your death.

This distinction highlights why wills are particularly important for common law couples. Contact LM Legal Solutions to discuss how to protect your partner's interests through proper estate planning.

Probate Process and Fees Under Nova Scotia Law

Probate (under Nova Scotia's Probate Act) is the court process that validates your will and grants your executor the legal authority to administer your estate and assets contained therein. While not all estates require probate, financial institutions and land registry offices typically demand it before releasing assets or transferring property.

The process follows a specific sequence:

  • Opening the estate: Your executor's job is to file an application with the probate court along with the original will, death certificate, and information about your assets and beneficiaries

  • Notice to beneficiaries and creditors: Your executor notifies all beneficiaries named in the will (persons entitled) and publishes a notice to creditors who have a specified period to come forward with claims

  • Inventory and valuation: Your executor creates a complete inventory of all assets and debts, with professional appraisals for real estate, business interests, and valuable personal property

  • Paying debts and taxes: Debts are paid in a specific legal order starting with funeral expenses and estate administration costs, then secured debts, then general creditors

  • Distributing the estate: After paying all debts and taxes, Your executor's job is to distributes the remaining estate assets to beneficiaries according to your will's instructions

Strategies to Reduce Probate Tax While Staying Compliant

Nova Scotia charges probate fees based on your estate's value. While the fees are relatively modest compared to some provinces, several legal approaches can minimize what passes through probate.

  • Joint Ownership Options: Holding property in joint tenancy with right of survivorship means the property automatically transfers to the surviving owner outside your estate. This works well for real estate and bank accounts, but it carries risks—the joint owner gains immediate access and ownership rights, which can create problems if relationships deteriorate or if creditors make claims.

  • Designating Beneficiaries on Accounts: RRSPs, RRIFs, TFSAs, and life insurance policies allow you to name beneficiaries directly. Assets with beneficiary designations (such as the ones listed above) pass to your named beneficiaries outside your will and avoid probate entirely. It's important to review your beneficiary designations regularly to confirm they still reflect your wishes, especially after marriage, divorce, or the birth of children.

  • Using Trusts and Gifting: Creating an inter vivos trust (a trust established during your lifetime) can hold assets that won't pass through your estate. Similarly, gifting assets before death reduces your estate's value, though you want to consider tax implications and your own financial security before giving away significant assets.

Proposed Reforms to the Wills Act and Why They Matter

Legislative discussions in Nova Scotia have explored modernizing will-making requirements to reflect current technology and circumstances. Proposed reforms include recognizing electronic wills with digital signatures and allowing remote witnessing through video conferencing.

Changes like this would make will-making more accessible, particularly for people with mobility limitations or those living in remote areas. However, the proposed changes also raise concerns about fraud prevention and confirming testators act voluntarily without coercion. While some jurisdictions have adopted similar reforms, Nova Scotia has moved cautiously, maintaining traditional requirements for now.

Creating a valid will involves more than following technical requirements—it requires understanding how your family situation, estate assets, and goals interact with complex legal rules. Common mistakes, like improper witnessing, unclear language, or failing to account for tax implications, can undermine even the most well-intentioned plans.

Professional legal guidance can help confirm that your will accurately reflects your wishes and minimizes potential disputes while protecting your family's interests. Book a consultation with LM Legal Solutions to discuss your estate planning with experienced attorneys who understand Nova Scotia law and your unique circumstances.

FAQs About the Nova Scotia Wills Act

How long does an executor have to file a will for probate in Nova Scotia?

Nova Scotia law doesn't specify a deadline for filing a will for probate. However, executors face practical pressures to apply promptly—financial institutions freeze accounts, property can't be sold, and beneficiaries can't receive their inheritances until probate is granted.

Is a will made in another province valid in Nova Scotia?

A will validly made according to the laws where it was created is generally recognized in Nova Scotia. If you move to Nova Scotia with a will from another province, having a lawyer review it confirms it addresses Nova Scotia-specific issues and still reflects your current wishes.

How much does it cost to have a lawyer draft a will in Nova Scotia?

Legal fees for will preparation vary based on your estate's complexity, family situation, and specific circumstances. While costs differ among firms, professional will preparation is a modest investment compared to the potential costs of disputes, invalid provisions, or unintended consequences from do-it-yourself approaches.

Understanding the Intestate Succession Act in Nova Scotia

In Nova Scotia, when an individual dies without a proper will in place, the Intestate Succession Act determines exactly who inherits the person's property and in which proportions. This provincial law follows a strict hierarchy that prioritizes spouses and children first, followed by parents, siblings, and more distant relatives if necessary.

This article explains how intestate succession works in Nova Scotia, who inherits when there's no will, what assets may bypass the estate entirely, and how proper estate planning can ensure your wishes are respected rather than leaving distribution to a predetermined legal formula.

What Happens When Someone Dies Without a Will in Nova Scotia

A person has died "intestate" when they have passed without having a proper will in place.

In Nova Scotia, the Intestate Succession Act comes into play to determine how the person's estate gets distributed. This provincial law establishes a specific hierarchy of beneficiaries, prioritizing the surviving spouse and children first, then parents, and finally other relatives.

The Act includes what's called a preferential share: a fixed amount that goes to the deceased's spouse before the remainder of their estate gets divided. After the spouse receives the preferential share, the rest of the estate is divided according to specific rules based on surviving family members.

However, intestate succession only applies to assets that actually form part of the deceased's estate. Property held in joint tenancy, registered accounts with named beneficiaries, and life insurance policies with designated beneficiaries typically pass directly to survivors without going through this distribution process at all.

Order of Inheritance Under the Intestate Succession Act

The Intestate Succession Act follows a clear hierarchy that determines who inherits the assets of the deceased person and in which proportions. The hierarchical approach of the Act distributes assets according to the deceased's closest living relatives, though it may or may not reflect what the deceased actually wanted.

  1. Spouse and One Child: When the deceased leaves behind a surviving spouse and one child, the spouse is entitled to receive a preferential share of the estate plus one-half of the remaining estate. The child then receives the other half of what remains.

  2. Spouse and Multiple Children: If there are multiple children, the spouse's share of the remainder drops to ensure the children receive a larger portion collectively. The spouse still receives the preferential share but only one-third of the remaining estate. The children then divide the other two-thirds equally among themselves.

  3. No Spouse but Children: When there is no surviving spouse, the entire estate is divided equally among all surviving children. If one of the children died before the intestate person but left their own children, those grandchildren inherit their parent's share through what's called "per stirpes" distribution. This means each branch of the family receives what their parent would have inherited.

  4. No Spouse or Children: If the deceased has no spouse or children, the estate passes to their parents in equal shares if both are living. When only one parent survives, that parent receives the entire estate. If both parents have already passed away, the estate is divided equally among siblings, and if a sibling has died, their children inherit their parent's share.

  5. No Surviving Next of Kin: In rare cases where no eligible family members can be located after extensive searches, the estate ultimately passes to the provincial government. The Public Trustee of Nova Scotia manages these unclaimed estates and attempts to locate any possible heirs before the Crown takes possession.

Share of a Surviving Spouse or Common-Law Partner

The definition of "spouse" under the Intestate Succession Act is critically important and often misunderstood. A legally married spouse automatically qualifies for the spousal share outlined in the Act. Registered domestic partners also receive the same inheritance rights as married couples under Nova Scotia law.

Unregistered common-law partners face a very different situation. Even if a couple has lived together for many years in a marriage-like relationship, an unregistered common-law partner does not automatically inherit under the Intestate Succession Act. Instead, they may need to make a claim to the court for support from the estate, which can be a lengthy and uncertain process.

This distinction highlights why estate planning matters so much for common-law couples. Without a will or registered domestic partnership, a surviving common-law partner could find themselves with no legal claim to property they helped build during the relationship.

Rights of Children and Other Descendants

The Intestate Succession Act treats biological children and legally adopted children identically. Both have full inheritance rights. Stepchildren, on the other hand, do not automatically inherit from a step-parent under intestate succession unless they were legally adopted.

When a child dies before their parent but leaves their own children, those grandchildren step into their parent's place through per stirpes distribution. For instance, if the deceased had three children but one child died before them leaving two children of their own, the estate would be divided into three equal shares: one for each surviving child and one to be split between the two grandchildren whose parent had died.

Who Inherits When There Is No Spouse or Children

Beyond the immediate family of the deceased, the Intestate Succession Act establishes an extended hierarchy of relatives who may inherit some of the person's estate. After parents and siblings, the order continues through more distant relatives:

  • Nieces and nephews may inherit if all siblings have already passed away

  • Grandparents may receive the estate if no nieces or nephews exist

  • Aunts and uncles may inherit when grandparents have also passed away

  • Cousins may inherit as a last resort before the Crown

Each level is completely exhausted before moving to the next. Even distant relatives you've never met could inherit before the estate would pass to the government.

Assets That May Bypass the Estate Such as Joint Tenancy and Insurance

Not all assets owned at death automatically become part of the intestate estate. Several types of property pass directly to survivors through legal mechanisms that operate outside the Intestate Succession Act.

  • Joint Tenancy Home Ownership: Property held in joint tenancy with right of survivorship automatically transfers to the surviving joint owner upon death. This is common with married couples who own their home together. When one spouse dies, the other becomes the sole owner immediately without the property going through the estate. Property held as tenants in common operates differently, though. The deceased's share becomes part of the estate and is distributed according to intestate succession rules rather than passing automatically to the co-owner.

  • Designated Beneficiary Accounts: Registered Retirement Savings Plans (RRSPs), Registered Retirement Income Funds (RRIFs), and Tax-Free Savings Accounts (TFSAs) allow you to name beneficiaries directly on the account. For properly designated beneficiaries, the funds transfer directly to that person without forming part of the estate. Bank accounts can also have beneficiary designations in many cases, allowing them to bypass the estate distribution process entirely.

  • Life Insurance Proceeds: Life insurance policies with named beneficiaries pay out directly to the designated individuals rather than to the estate. However, if the estate is named as the beneficiary or if no beneficiary is designated, the insurance proceeds become part of the estate and are subject to intestate distribution rules.

  • Registered Plans With Named Beneficiaries: Pension plans typically include provisions for surviving spouses or designated beneficiaries to receive benefits directly. Similarly, TFSAs can name a "successor holder" (usually a spouse) who takes over the account, or a beneficiary who receives the funds. Beneficiary designations take precedence over intestate succession and warrant regular review to ensure they reflect current intentions.

Debts, Taxes, and Funeral Costs That Must Be Paid First

Before any assets can be distributed to heirs, the estate settles all outstanding debts and obligations. This fundamental principle of estate administration protects creditors while ensuring heirs receive only what remains after legitimate claims are satisfied.

  • Priority of Claims: Funeral expenses receive top priority and are paid first from estate assets. Secured debts come next, which are those attached to specific property like mortgages or car loans. Unsecured debts such as credit cards and personal loans are paid after secured debts, though they still take precedence over any distribution to heirs.

  • Secured vs Unsecured Debts: Secured debts are backed by collateral, meaning the lender can claim the specific asset if the debt isn't paid. The most common example is a mortgage on a house. If the estate does not have the ability to pay the mortgage, the house may need to be sold. Unsecured debts have no specific collateral attached and represent general claims against the estate's total value, though they still get paid before heirs receive anything.

  • CRA and Probate Fees: The Canada Revenue Agency requires that a final tax return be filed for the deceased, which covers any income earned up to the date of their death. In turn, any taxes owing will be paid from the estate before any assets are distributed. Additionally, Nova Scotia charges probate fees based on the estate's value. These fees are paid when applying for a Grant of Administration to manage the intestate estate.

Duties of an Estate Administrator in Nova Scotia

When someone dies without a will, the court appoints an administrator to manage the estate rather than an executor named in a will. The administrator, often the spouse or an adult child, has significant legal responsibilities and potential personal liability if they fail to fulfill their duties properly.

  1. Locate and Value Assets: The administrator identifies every asset owned by the deceased, from bank accounts and investments to real estate and personal property. The administrator may need to coordinate professional appraisals to establish the fair market value of any real estate, vehicles, jewelry, or other valuable items owned by the deceased. Taking proper inventory of the deceased's assets is important for calculating probate fees and ensuring proper distribution.

  2. Advertise for Creditors: Nova Scotia law requires administrators to publish a notice to creditors in a government publication called the Royal Gazette. This advertisement gives creditors a specified period, typically 6 months, to come forward with any claims against the estate. Failing to properly advertise can leave the administrator personally liable if unknown debts surface after distribution.

  3. Pay Debts and Taxes: Once the waiting period expires, the administrator verifies all claims and pays legitimate debts in the proper order of priority. This includes settling the final tax return with CRA and obtaining a clearance certificate confirming all taxes have been paid. Only after all debts, taxes, and administrative expenses are satisfied can the administrator proceed to distribute assets to heirs.

  4. Distribute Remaining Estate: After all obligations are met, the administrator distributes the remaining assets according to the Intestate Succession Act's hierarchy. This may involve selling property to divide proceeds, transferring ownership of specific assets, or distributing cash from liquidated holdings. The administrator accounts for every dollar and provides documentation to all beneficiaries showing how the estate was handled.

Typical Timeline and Costs for an Intestate Estate

Administering an intestate estate generally takes longer and costs more than settling an estate with a valid will. The administrator applies to the court for a Grant of Administration, which requires additional documentation and court appearances compared to probating a will. This application alone can add several weeks or months to the timeline, particularly if there are disputes about who serves as administrator.

Most intestate estates take between 12 and 18 months to fully settle. Complex situations involving business interests, real estate in multiple jurisdictions, or family disputes can extend this considerably. Legal fees are typically higher because the administrator often needs more guidance navigating their duties, and probate fees remain the same regardless of whether there's a will.

How to Avoid Intestacy Through Proper Estate Planning

The most effective way to ensure your assets are distributed according to your wishes is through comprehensive estate planning. While the Intestate Succession Act provides a default distribution scheme, it cannot account for your specific family dynamics or intentions.

  • Create a Valid Nova Scotia Will: A properly executed will allows a person to specify exactly who receives what from their estate, in addition to having the ability to appoint a trusted executor to carry out a person's your wishes. The province of Nova Scotia requires that wills be signed by the testator (the person making the will) and witnessed by two individuals who are not beneficiaries. Consulting with an experienced estate planning lawyer at LM Legal Solutions ensures your will meets all legal requirements and clearly expresses your intentions.

  • Register a Domestic Partnership if Applicable: Common-law couples who want to ensure inheritance rights in the event of one partner passing, without a formal marriage, can register their domestic partnership with Nova Scotia Vital Statistics. This process grants registered domestic partners the same intestate succession rights as married spouses, which in turn provides crucial protection if one partner dies unexpectedly. The registration form requires both partners' signatures and basic identifying information.

  • Update Beneficiary Designations: It's important for a person to review all their registered accounts, insurance policies, and pension plans to confirm beneficiary designations are current and reflect their wishes. Life changes like marriage, divorce, the birth of children, or the death of a previously named beneficiary all warrant immediate updates to designations. Beneficiary designations typically override your will, so consistency across all documents is important.

  • Consider Joint Ownership Structures: For certain assets, such as the family home, establishing joint tenancy with right of survivorship can help ensure a smooth transfer of property to your partner or co-owner. Joint ownership isn't appropriate for every situation and can have tax and legal implications worth discussing with a professional. Bank accounts can also be structured with joint ownership or beneficiary designations to avoid probate delays while ensuring your intended recipients have immediate access to funds.

Understanding the nuances of the Intestate Succession Act in Nova Scotia highlights why it's important to be proactive about estate planning. While the Act provides a framework for distributing assets, it cannot account for your unique family circumstances or specific wishes for your legacy.

At LM Legal Solutions, we help clients throughout Dartmouth and the Halifax Regional Municipality create comprehensive estate plans that provide clarity and peace of mind. Whether you need to draft your first will, update an existing plan, register a domestic partnership, or navigate the complexities of administering an intestate estate, our experienced team provides practical guidance tailored to your situation. Contact us today to schedule a consultation and take the important step of protecting your family's future through proper estate planning.

FAQs About Intestate Succession in Nova Scotia

What happens to digital assets if there is no will in Nova Scotia?

Digital assets, such as online accounts, cryptocurrencies, and/or digital files, may become part of the intestate estate, but accessing them presents unique challenges. Many online platforms have their own policies about account access after death, and without proper planning or a will that addresses digital assets, your administrator may need court orders to gain access.

Does the public trustee always step in when there are no heirs?

The Public Trustee of Nova Scotia becomes involved primarily when no eligible family members can be located after reasonable searches or when no one is willing to serve as administrator. The Public Trustee manages unclaimed estates and makes efforts to locate possible heirs before the estate ultimately passes to the Crown, though this is relatively rare.

Will common-law partners pay probate tax on their share?

Unregistered common-law partners are not automatically recognized as spouses under the Intestate Succession Act and therefore do not inherit through intestate succession. If they successfully make a claim to the court for support from the estate, any amount they receive would come from the estate after probate fees have already been calculated and paid.

How are family heirlooms divided without a will?

Personal property, including family heirlooms, may be eligible for distribution according to intestate succession rules. These rules typically mean these items may become part of the general estate assets to be divided among eligible heirs. However, the rules around heirlooms can lead to difficult situations if multiple family members want the same items, which potentially requires family agreement or court intervention if disputes cannot be resolved amicably.

Personal Directives in Nova Scotia: Complete Legal Guide

Planning for a time when you cannot make your own health care decisions is one of the most thoughtful acts you can do for yourself and your family. A personal directive is a legal document under Nova Scotia's Personal Directives Act that allows you to document your wishes about future personal care services or decisions, and to appoint someone to make these important decisions if you become unable to communicate or decide for yourself.

This guide explains what personal directives are for Nova Scotians, how to make a personal directive properly, what health care decisions you can address, and how to avoid common mistakes that could invalidate your wishes.

What is a Personal Directive in Nova Scotia

A personal care directive is a legal document under Nova Scotia's Personal Directives Act that allows you to document your wishes about future personal care decisions and appoint someone to make those decisions if you become unable to communicate or make decisions yourself. This document addresses medical treatment options, living arrangements, home care services, community services, and other personal care decisions or different matters—but it does not cover financial or property decisions, which require a separate power of attorney. The purpose of a personal directive is to ensure your voice guides your personal care decisions even when you cannot speak for yourself.

Without this document, other people may have to guess what you would have wanted, which can lead to difficult situations during an already stressful time. Your family experiences less conflict because your wishes are documented clearly, reducing disagreements about what personal care decisions you want. Health care providers and hospital staff also benefit from having explicit guidance, which helps them deliver personal care that respect your preferences rather than making assumptions.

Personal directives in Nova Scotia are governed by the Personal Directives Act, provincial legislation that gives these documents legal authority. The Act outlines who can create a directive, what decisions it can address, how it gets executed, and when it takes effect.

To make a personal directive, you have to be at least 19 years old and have the mental capacity to understand what you're doing. Capacity means you comprehend the nature and consequences of the directive; specifically, that you understand what decisions the document addresses, who you're appointing to make decisions, and that your delegate will have authority to act on your behalf. If questions arise about your capacity at the time you created the directive, a formal capacity assessment by a qualified professional may be conducted to determine whether the document is valid.

Your personal directive only becomes active when you lose the capacity to make decisions for yourself. Health care providers determine incapacity based on clinical assessments and professional judgment about your ability to understand information, appreciate consequences, and communicate decisions.

Types of Decisions You Can Authorize in a Personal Directive

Health care treatment decisions form the core of most personal directives. You can provide instructions about medical procedures, medications, surgery, diagnostic tests, and life-sustaining treatments like ventilators or dialysis. Your directive might specify treatment options you want to receive, treatments you want to refuse, or conditions under which certain interventions get used or not used.

You can also address accommodation and living arrangements in your directive. This includes stating where you wish to live if you can no longer care for yourself independently—whether at home with support services (such as a home care services provider), in an assisted living facility, or in a continuing care home (long-term care). Your directive might include instructions for preferred facilities, express preferences about living with family members, or outline the level of independence you want maintained as long as possible.

Nutrition and personal comfort measures represent another important category of decisions:

  • Nutrition preferences and dietary restrictions

  • Whether you would want a feeding tube if you could not eat on your own

  • Pain management approaches

  • Clothing hygiene safety comfort

  • Social activities and recreation

  • Religious or cultural practices that influence your personal care

End-of-life care instructions allow you to express your wishes about your personal care during your final days or weeks. You can provide guidance on palliative care approaches, do-not-resuscitate (DNR) orders, organ donation, and whether you want to be hospitalized or remain at home. Clear, specific language in this section helps your health care providers and family understand exactly what you want during this sensitive time.

How to Create and Execute Your Personal Directive

Creating a personal directive starts with gathering relevant information about yourself. This might include collecting details about your medical history as well as any current health conditions, medications, allergies, not to mention any religious or cultural beliefs that influence your personal care decisions and preferences.

You might consider custom drafting if you have complex medical needs, intricate family dynamics, specific religious requirements, or want to integrate your directive with broader estate planning documents.

Proper execution requires one witness who is present when you sign your directive. Your witness cannot be your appointed delegate, and your witness generally cannot be a beneficiary under your will or someone who provides you with health care services. The witness signs the document confirming they watched you sign, that you appeared to have capacity, and that you signed voluntarily without pressure from others.

Selecting and Instructing Your Delegate

Your delegate has to be at least 19 years old, mentally capable of making decisions, and willing to accept the responsibility. Your delegate generally cannot be your health care provider or an employee of a facility where you receive personal care, though limited exceptions exist under specific circumstances outlined in the regulations.

Once appointed, your delegate has clear legal duties. This individual follows your stated wishes as expressed in your directive and, using their decision making authority, acts in your best interests when your directive does not address a particular situation. The law provides delegates with immunity for good-faith decisions made according to your directive, protecting them from liability when they genuinely attempt to honour your wishes.

Providing clear written guidance makes your delegate's job easier during what will likely be a stressful time. Compare these two examples:

  • Clear instruction: "If I have advanced dementia and cannot recognize nearest relatives, I do not want CPR or intubation."

  • Vague instruction: "Do what's best for me."

The first example gives your delegate specific direction, while the second leaves them guessing. Discuss likely scenarios with your delegate in advance so they understand not just what you want, but why—this context helps them make decisions about situations you may not have explicitly addressed.

Personal Directive Storage Options

Provide copies directly to your family doctor, any specialists you see regularly, and your local hospital. Keep the original in a safe but accessible location—not a safety deposit box, which may be difficult to access quickly. Your delegate and key family members need to know exactly where the original and copies are stored so they can retrieve them when needed.

Consider modern access methods for emergencies:

  • Store a digital copy in secure cloud storage that trusted people can access

  • Wear a medical alert bracelet indicating you have a personal directive

  • Carry a wallet card with information about where your directive can be found

Updating and Revoking Your Personal Directive

You can change or cancel your personal directive at any time, but you have to have mental capacity to do so. Capacity is required because modifying a directive is essentially the same as creating a new one—you have to understand what you're changing and why. No one else, including your delegate or family members, can modify your directive on your behalf.

To formally revoke an existing directive, provide written notice to everyone who has a copy, destroy all copies you control, and follow any specific revocation procedures mentioned in your document. Keep a written record of the revocation with the date and your signature. If you're replacing an old directive with a new one, the new document typically includes language explicitly revoking all previous directives.

Notify all relevant parties promptly about any updates or revocations. This includes your health care providers, your delegate, alternate delegates, and family members who might be involved in your care.

Consequences of Not Having a Personal Directive

Without a personal directive, Nova Scotia law establishes a substitute decision-maker hierarchy to determine who makes decisions for you. The law typically looks to your spouse or domestic partner first, then your adult children, then your parents, then your adult siblings, and finally other adult relatives.

This hierarchy can create delays if the appropriate person is difficult to locate, and it can lead to serious conflicts if family members at the same level disagree about your care. When no eligible substitute decision-maker exists, or family members cannot agree, someone may need to apply to court for adult guardianship. Doing so often involves legal applications, court hearings, assessing capacity, and potentially significant legal fees.

A statutory decision maker may be appointed by law if you do not have a personal health care directive in place.

Common Personal Directive Mistakes to Avoid

Unclear or contradictory language creates confusion when your directive is needed most. Avoid vague terms like "extraordinary measures" or "reasonable treatment" without defining what you mean. Instead, use specific, concrete descriptions of situations and your wishes for each.

Improper witnessing and execution errors can invalidate your entire directive:

  • Forgetting to sign the document

  • Using a witness who is ineligible under the law

  • Failing to complete all required sections of the form

Many people create a personal directive but never discuss it with their chosen delegate named. Your delegate might not even know they've been appointed, or they might be unwilling to serve but never had the chance to say so. Schedule a conversation to review your wishes, confirm your delegate accepts the role, and check in periodically to keep them updated.

Personal directives, powers of attorney, and wills serve different purposes and operate at different times. For instance, your personal directive does not give anyone authority over your finances—that requires a power of attorney. Neither document distributes your property after death—that's the role of your will.

You may encounter terms like "advance directive," "advance care plan," or "living will" when researching personal directives. In Nova Scotia, the terms are sometimes used interchangeably with "personal directive," though they may have specific meanings in other provinces or countries. When creating your personal directive, it's important to focus on creating one that meets Nova Scotia's legal requirements under the Personal Directives Act.

Getting Professional Help with Your Personal Directive

When it comes to making a personal directive, certain situations benefit from professional legal guidance. Consider consulting an estate planning lawyer if you have complex medical conditions requiring detailed instructions, if you anticipate potential family conflicts over your care, if you own business interests that might be affected by health care decisions, or if you want your directive integrated into a comprehensive estate plan.

LM Legal Solutions offers estate planning services with a personalized, client-focused approach. Our team takes time to understand your health situation, family dynamics, values, and goals to ensure your personal directive truly reflects your wishes. Book a consultation to discuss your personal directive and broader estate planning needs.

FAQs About Personal Directives in Nova Scotia

Is a personal directive made in another province valid in Nova Scotia?

Generally yes, if the directive was properly executed according to that province's legal requirements at the time it was created. However, Nova Scotia health care providers are most familiar with local forms and the specific requirements of the Personal Directives Act, so you might consider updating to a Nova Scotia format after relocating.

Can I appoint multiple delegates for my personal directive?

Yes, you can appoint alternate delegates who step in if your first choice is unavailable, unwilling, or unable to serve. Only one delegate acts at a time.

Does getting married automatically revoke my existing personal directive?

No, marriage does not automatically cancel a personal directive in Nova Scotia the way it revokes a will. Your personal directive remains valid after marriage. However, you might want to review and update your directive after major life changes like marriage, divorce, or the death of your appointed delegate.

Executor of a Will in Nova Scotia

Being named as the executor of a will can feel like an honour — especially if the deceased person was a trusted family member. However, the executor role is an important part of the estate planning process and comes with serious legal responsibilities that can last months or even years.

Many people accept the role without realizing the level of time and organization it requires — from managing assets and debts to coordinating with financial institutions, the Canada Revenue Agency (CRA), and family members during a difficult time.

This overview explains the key duties of an executor in Nova Scotia and highlights when it may be helpful to seek professional support.

Understanding the Duties of an Executor in Nova Scotia

An executor (sometimes referred to as an estate trustee) is the person named in a will who has the legal authority to manage a person’s estate after their death. The executor's duties typically include organizing assets, settling the individual's outstanding debts and taxes, and distributing any remaining property and other assets in accordance with the deceased's last will and testament.

Executors act in a fiduciary capacity — meaning they have a duty to act honestly, fairly, and in the best interests of the beneficiaries and creditors.

If there is no will, or if the named executor cannot act, the court may appoint an administrator to fulfill similar responsibilities.

Who Can Serve as Executor

Most adults in Nova Scotia can serve as executors, provided they are capable of managing financial affairs. Executors do not need to live in Nova Scotia. However, given how time consuming executor duties can be, those living outside the province often find it helpful to work with local professionals who can assist with paperwork and documents, court filings, and coordination.

Trust companies or lawyers can also serve as executors (known as "professional executors"), which may be suitable for more complex estates or where impartiality is important.

First Responsibilities After a Death

Executors are generally responsible for locating and reviewing the original will, notifying the person's financial institutions, and making arrangements related to the deceased's funeral and their estate’s immediate needs.

They may also need to ensure that all the assets — including any property, vehicles, and valuables — are secure and properly maintained until the estate is settled. Bank accounts and investment accounts are additional assets that will need to be secured.

Because every situation is different, executors often consult with an estate lawyer before taking formal steps to confirm next actions and timelines.

When Probate Is Required in Nova Scotia

Probate is the court process that confirms a will’s validity and gives an executor formal authority to manage the estate.

In Nova Scotia, probate is often required before banks, investment firms, other financial institutions, or the Canada Revenue Agency will release estate assets. Some smaller estates or jointly owned assets may not need to go through full probate, depending on how ownership is structured.

An estate lawyer can help determine whether probate court applies and what documentation is needed.

Duties During Estate Administration

An executor’s responsibilities typically include:

  • Compiling an inventory of the deceased’s assets

  • Managing funds held in bank accounts and/or investment accounts

  • Paying outstanding debts, expenses, and income taxes (including filing the appropriate tax returns)

  • Coordinating with the CRA and other government agencies as needed

  • Communicating with beneficiaries throughout the process

  • Distributing the remaining assets once obligations are met

While the general order of these tasks is consistent, the specifics can vary based on the size and complexity of the estate.

Managing Real Estate and Personal Property

Real estate and personal property often represent the most significant part of a someone's estate. Therefore, the executor is responsible for maintaining and protecting these assets until ownership is transferred or until the assets are sold.

This process may involve ensuring the deceased's property remains insured (via the applicable insurance policies) as well as coordinating with professionals such as appraisers or real estate agents. Their duties may also include keeping beneficiaries informed of any major decisions.

Debts, Taxes, and Financial Matters

Before distributing any assets, executors must ensure that estate the deceased's debts and taxes are addressed, if applicable. This includes paying outstanding bills, loans, and income taxes owed to the CRA.

Many executors choose to work with accountants or estate lawyers to handle these matters accurately and to also confirm that all obligations are met before completing the distribution of the person's assets.

Communicating With Beneficiaries

Clear communication helps avoid misunderstandings and disputes. Executors are expected to keep beneficiaries (including family, if applicable) reasonably informed about progress and decisions affecting the estate.

Maintaining detailed records, documents, and written correspondence throughout administration provides transparency and helps protect the executor if questions arise later.

Executor Compensation

Executors are entitled to reasonable compensation for their time and effort. The amount depends on the estate’s size and complexity.

In Nova Scotia, compensation is typically reviewed by the beneficiaries and, if necessary, may be subject to court approval to ensure it is fair and proportionate.

Executor Liability and Risk

Executors can be held personally responsible for errors or omissions made in the administration of an estate.

Acting diligently, keeping accurate records, and obtaining professional advice can help minimize risk and ensure the estate is administered properly.

Declining or Resigning From the Role

Being named as an executor does not mean you are obligated to accept the role. If you are unable or unwilling to act, you can decline the appointment. Executors who have already begun administration may require court approval to step down.

A lawyer can explain the available options and help ensure the process is handled appropriately.

Out-of-Province Executors

Executors who live outside Nova Scotia can still act, though additional coordination is often required for property management, court filings, and communication with local institutions.

LM Legal Solutions frequently assists out-of-province executors with local procedures and compliance matters to ensure the process runs smoothly.

How Long Does It Take to Settle an Estate

There is no fixed timeline for estate administration in Nova Scotia. Straightforward estates may be completed within a year, while complex estates — especially those involving real estate, business interests, or tax matters — can take longer.

Maintaining organized records and open communication with beneficiaries helps keep the process efficient.

Support for Executors in Nova Scotia

Serving as an executor can be demanding and emotionally difficult, especially if family conflict is involved. Professional support can make a significant difference — ensuring the estate is managed correctly and efficiently.

At LM Legal Solutions, we assist executors across Nova Scotia with probate applications, CRA coordination, estate management, and beneficiary communication.

Contact our team to learn how we can help you carry out your duties confidently and effectively.

FAQs About Executors in Nova Scotia

What does an executor do?

An executor manages the administration of a person’s estate after death, ensuring their assets are collected, debts and taxes are paid, and that the remainder is distributed according to their will.

Does every estate need to go through probate?

Not always. Some estates can be settled without full probate, depending on how assets are held. A lawyer can help determine whether probate applies in a given case.

Should I get legal help as an executor?

Legal guidance can help executors meet their obligations and avoid potential issues with creditors, beneficiaries, or government agencies.

Enduring Power Of Attorney Nova Scotia: Complete Guide

Understanding how your finances and property are managed if you become unable to make decisions is important. In Nova Scotia, there are laws that allow you to plan ahead for this situation.

One legal tool for this purpose is called an enduring power of attorney. This article explains what it is, how it works, and how it is different from other types of powers of attorney.

Each section provides clear facts about the law and process in Nova Scotia. The goal is to help you understand the basics of enduring powers of attorney in straightforward terms.

What Is An Enduring Power Of Attorney In Nova Scotia?

An enduring power of attorney is a legal document used in Nova Scotia. It allows a person, referred to as the "donor," to choose someone they trust, known as the "attorney," to manage their finances and property.

This arrangement is governed by Nova Scotia's Powers of Attorney Act. The word "enduring" means that the authority granted in this document remains in effect even if the donor loses the ability to make decisions for themselves due to illness or injury.

A regular power of attorney in Nova Scotia ends if the donor becomes mentally incapable. In contrast, an enduring power of attorney stays in effect after incapacity, making it a specific tool for long-term financial and property management.

The attorney can handle tasks like:

  • Managing bank accounts and investments

  • Paying bills and filing tax returns

  • Buying or selling property

  • Making legal and financial decisions

How Does An Enduring Power Differ From Other Powers Of Attorney?

There are several types of power of attorney documents in Nova Scotia. Each type serves a different purpose and works in a unique way.

General Power Of Attorney

A general power of attorney grants someone the authority to make decisions about finances and property on behalf of another person, but only while the person who made the document remains mentally capable. If the donor loses mental capacity, this type of power of attorney automatically ends. A general power of attorney is often used for temporary reasons, such as when someone is travelling and needs help managing their affairs.

Springing Power Of Attorney

A springing power of attorney only becomes effective if the donor becomes mentally incapable. This type means the chosen person cannot act until a specific event—usually incapacity—takes place. In Nova Scotia, springing powers of attorney are less commonly used compared to other provinces.

Personal Directive For Health Care

A personal directive is a separate legal document used for health and personal care decisions. This document allows a trusted person to make medical and personal care decisions if the person who made the directive loses the ability to make those choices. A personal directive does not cover decisions about finances or property, as a power of attorney or enduring power of attorney typically handles these matters.

Why You Should Have An Enduring Power Of Attorney

Suppose a person loses the ability to manage their own finances or property, and there is no enduring power of attorney in place. In that case, the law in Nova Scotia requires a guardian to be appointed by the court. This process can be slow and involves paperwork, legal fees, and waiting for a judge to decide who will take on the responsibility.

Disagreements can arise among family members about who makes decisions when there is no apparent legal authority. Banks and other financial institutions cannot release funds or allow changes to accounts without proper legal documents.

The benefits of an enduring power of attorney are as follows:

  • Helps avoid court proceedings. Prevents lengthy guardianship applications that can take months.

  • Protects family relationships. Clear legal authority helps prevent potential disputes among relatives.

  • Ensures bills get paid. The document ensures that the donor's financial obligations are maintained during incapacity.

In Nova Scotia, the Powers of Attorney Act outlines specific rules for creating a valid enduring power of attorney. The document will only be legally recognized if it meets the below requirements.

Age And Capacity Of The Donor

A person making an enduring power of attorney in Nova Scotia is required to be at least 19 years old. The person is also required to be mentally capable at the time of signing. Mental capacity means being able to understand the nature and effect of the enduring power of attorney, including what property and finances are involved and the authority being given to the attorney.

Two Independent Witnesses

As of 2022, two independent witnesses are required for an enduring power of attorney to be valid in Nova Scotia. The previous law required only one witness. An independent witness is someone who is not named as the attorney, is not the spouse or partner of the attorney, and is not a beneficiary under the donor's will.

Wording That Ensures Endurance

The enduring power of attorney clearly states that it is intended to remain valid even if the person who made the document loses mental capacity. The document generally includes language such as: "This power of attorney continues to be effective even if I become mentally incapable after it is signed." Without this specific statement, the document may not qualify as an enduring power of attorney under Nova Scotia law.

Who Can Be Your Attorney Or Alternate

An attorney named in an enduring power of attorney manages property and financial matters for another person if that person becomes unable to do so. Choosing an attorney or alternate attorney involves following certain legal rules and considering several practical factors. We describe these in greater detail below.

Eligibility Rules And Restrictions

The person chosen as an attorney is required to be at least 19 years old and mentally capable when the document is signed. An attorney cannot also act as a witness to the signing of the enduring power of attorney. The law allows a corporation, such as a trust company, to be appointed as an attorney to manage financial affairs, though this is not common for most personal estate plans.

Factors For Choosing A Trustworthy Attorney

Selecting someone for the role of attorney involves considering qualities that support sound decision-making and reliable management of finances and property. Naming an alternate attorney is possible; this person steps in if the first attorney cannot or will not act.

Key qualities for the role of attorney include:

  • Financial responsibility. This person manages money well and understands basic financial concepts.

  • Availability. They live nearby or can travel when needed to handle urgent matters.

  • Family harmony. The choice of attorney will not create conflicts among family members.

The person being considered for the role of attorney cannot have any undischarged bankruptcies or criminal convictions of dishonesty. This qualification was brought in with changes to the law in 2022.

Duties And Responsibilities Of An Attorney

An attorney named under an enduring power of attorney in Nova Scotia has legal responsibilities set out by law. The attorney's main responsibility is to manage the donor's property and finances according to the instructions in the document.

Fiduciary Duty And Best Interest Standard

An attorney is considered a fiduciary, which means they are in a position of trust. The attorney is required by law to act in the best interests of the donor at all times. This means putting the donor's needs before their own and avoiding any situation where their personal interests could conflict with those of the donor.

The attorney manages the donor's money, property, and financial matters honestly and carefully. The attorney cannot use the donor's property for personal benefit unless the enduring power of attorney document specifically allows it.

Record-Keeping And Reporting Under The Act

Nova Scotia law requires an attorney to keep accurate and complete financial records of all transactions made on behalf of the donor. This includes tracking money spent, received, or moved, and keeping receipts, statements, and other documents as evidence.

The attorney is required to provide an accounting if asked by the donor, certain family members, or other "interested persons." This means the attorney shares details about what has been done with the donor's property and money. Courts in Nova Scotia may also review an attorney's actions if questions or concerns arise.

Step-By-Step Guide To Creating An Enduring Power Of Attorney

1. Choose Your Attorney And Alternate

The person creating the enduring power of attorney selects a primary attorney and an alternate. The primary attorney is the first person who will have authority to act. The alternate can act if the primary attorney is unable or unwilling to take on the responsibility.

2. Define The Scope Of Authority

The enduring power of attorney may grant broad powers or limit authority to specific areas, such as managing bank accounts, paying bills, or selling real estate. It is possible to set restrictions, for example, prohibiting the attorney from making gifts or requiring additional approvals for selling property.

3. Draft The Document With Proper Language

The enduring power of attorney is written using clear legal language. The document includes an enduring clause that states the authority continues even if the person who created it loses mental capacity. It describes what powers are given, any limits, and any special instructions.

4. Sign Before Two Qualified Witnesses

The document is signed in the presence of two independent witnesses. Witnesses are people who do not benefit from the document and are not related to the attorney. All parties are present at the same time during the signing.

5. Register Or Notify Financial Institutions

Once the enduring power of attorney is signed and witnessed, financial institutions such as banks and investment firms are notified. If the authority includes managing or selling real estate, the document is registered with the Land Registry Office.

Witnessing Notarization And Registration Rules

An enduring power of attorney in Nova Scotia typically requires two independent witnesses. These witnesses confirm that the person signing the document understands what they are doing and is doing so voluntarily.

When Notarization Is Required

Notarization is not part of the standard process for an enduring power of attorney in Nova Scotia. A notary public is not required to witness the signing for the document to be valid under Nova Scotia law. However, some banks or financial institutions may prefer or ask for a notarized copy before accepting the document.

Land Registry Filing For Real Property

When an attorney might need to sell, mortgage, or otherwise deal with real property such as a house or land, filing the document with Nova Scotia's Land Registry Office is required. The registration process involves submitting the original or a certified copy of the enduring power of attorney to the Land Registry Office, along with a registration form and payment of the prescribed fee.

How To Activate Or Revoke An Enduring Power Of Attorney

An enduring power of attorney in Nova Scotia can become active in two main ways. Some documents state that the attorney's authority begins as soon as the document is signed. Others say the attorney's authority only begins if the person who made the document becomes mentally incapable.

Most enduring powers of attorney made in Nova Scotia are effective immediately, but attorneys are expected to act only when it is necessary, such as when the donor is unable to manage their finances or property due to incapacity.

Revoking, or cancelling, an enduring power of attorney is possible at any time as long as the person who made it is still mentally capable. To revoke an enduring power of attorney, the donor provides written notice to the attorney and any third parties, such as banks or other institutions that may rely on the document.

Risks If You Do Not Have An Enduring Power Of Attorney

If an enduring power of attorney is not in place and a person becomes mentally incapable, several legal and financial issues may arise. For instance:

  • Court guardianship is required. The court may have to appoint someone to manage an individual's personal finances and property through a lengthy legal process.

  • Family disputes. Without clear legal authority, family members may disagree about who handles financial and property matters.

  • Financial hardship. Access to bank accounts and assets may be blocked, bills may go unpaid, and financial opportunities may be lost.

DIY Kits Versus Working With A Lawyer

There are two main ways to create an enduring power of attorney in Nova Scotia: using a DIY kit or working with a lawyer. Each approach has differences in cost, convenience, and the amount of legal expertise involved.

Cost And Convenience Comparison

DIY kits are less expensive than hiring a lawyer and are designed for straightforward situations that can be completed at home. However, DIY kits may not fit less common situations or allow for much customization. They typically follow a standard template and may not address all individual concerns.

Lawyers charge higher fees but offer advice tailored to a person's specific circumstances. Legal professionals can draft documents that include particular instructions or adapt the language for unique family, property, or business matters.

When Professional Advice Is Essential

Professional legal advice is important in certain situations. These include cases where an estate is complex, where there are family dynamics that could lead to disagreements, or where business interests are involved. A lawyer can help when there are specific restrictions or instructions that are included in the enduring power of attorney.

Safeguards Against Financial Abuse Under The 2022 Act

Nova Scotia's Powers of Attorney Act contains rules to help prevent financial abuse by attorneys under an enduring power of attorney. These rules are designed to protect the interests of the person who created the enduring power of attorney.

Court Oversight And Interested Persons

Courts have the power to review the actions of an attorney if someone raises a concern. Family members and other people known as "interested persons" can ask the attorney to provide a record of what they have done with the donor's money and property. If there is a disagreement or suspicion of misuse, these individuals can ask the court to look at the attorney's actions.

Remedies For Misuse Of Authority

There can be legal consequences if an attorney does not follow the law or uses their power inappropriately. The court can order the attorney to return money or property to the donor or to compensate for losses. The court can also remove the attorney from their role if it finds that they did not act in the best interests of the donor.

Next Steps For Protecting Your Estate And Finances

Preparing an enduring power of attorney is only one part of the estate planning process. Other common documents include a will, which addresses what happens to assets (money and property) after death, and a personal directive, which appoints someone to make health and personal care decisions if mental capacity is lost.

Preparing these documents simultaneously, as opposed to at different times, can help ensure that a person's financial, medical, and personal affairs are managed according to their individual wishes. Each document has a specific legal purpose and requires particular steps to be legally valid in Nova Scotia.

If you are in need of legal advice about enduring powers of attorney or estate planning, contact LM Legal Solutions, a law firm in Dartmouth serving clients throughout Nova Scotia. Our experienced team can provide guidance on your estate planning needs and help ensure your documents are properly prepared and executed.

FAQs About Enduring Power Of Attorney In Nova Scotia

Can an enduring power of attorney made in another province be used in Nova Scotia?

An enduring power of attorney created in another province is generally recognized in Nova Scotia. However, banks and other organizations in Nova Scotia may ask for the document to be registered locally or may request additional paperwork before accepting it.

What are the typical legal fees for having a lawyer prepare an enduring power of attorney in Nova Scotia?

Legal fees for preparing an enduring power of attorney vary based on how complex the situation is. Professional preparation ensures the document meets Nova Scotia's legal requirements and is tailored to your specific circumstances and wishes.

Can I appoint multiple attorneys to act together on my enduring power of attorney?

Yes, it is possible to appoint more than one attorney to act at the same time. Some people choose to require joint decision-making, which means all attorneys have to agree before taking action. This arrangement can make decisions slower if the attorneys do not agree or if one is unavailable.

How long does the process take to prepare and execute an enduring power of attorney in Nova Scotia?

If the situation is straightforward, an enduring power of attorney can be prepared and signed within a few days. If there are complicated instructions, special conditions, or multiple people involved, the process may take several weeks and can require more than one meeting.

Agreement of Purchase and Sale: Nova Scotia Requirements

Buying or selling property in Nova Scotia involves several legal steps. One of the most critical documents in the process is the Agreement of Purchase and Sale. Many people encounter this document for the first time when entering a real estate transaction.

Understanding what an Agreement of Purchase and Sale is—and what it includes—can help clarify the steps involved. This article explains the basics of this agreement as it applies to real estate law in Nova Scotia.

What is an Agreement of Purchase and Sale in Nova Scotia

An agreement of purchase and sale in Nova Scotia is a legally binding contract between a buyer and a seller. It outlines the terms and conditions for the transfer of ownership of property.

This agreement outlines key details including the purchase price, closing date, and any outstanding conditions that need to be met before the sale is finalized. Under Nova Scotia law, the agreement is required to be in writing to be enforceable. Both parties sign the document to show that they agree to its terms.

The Nova Scotia Real Estate Commission (NSREC) regulates most real estate forms used in our province. These standardized forms help ensure consistency across transactions and protect both buyers and sellers.

Standard Forms Buyers and Sellers Commonly Use

In Nova Scotia, most real estate transactions use standardized forms approved by the NSREC. These Nova Scotia real estate forms create consistency and help ensure all key points are addressed. The form that applies depends on the type of property and the nature of the transaction.

  • Form 400 is the most common agreement of purchase and sale form 400 for existing homes. REALTORS® typically use this template when a buyer makes an offer on a house that has already been built and previously owned.
  • Form 403 applies to new construction purchases. This form addresses details unique to new builds, such as construction completion dates and warranty provisions.
  • Form 402 is a schedule added to Form 400 when buying a resale condominium unit. It includes clauses specific to condominium properties, such as the review of reserve fund studies and condominium bylaws.
  • Form 408 is the waiver of conditions. If the realtor fails to provide this form by the time stipulated in the agreement, . If this happens, there is no way for lawyers to revive the previous deal.

Some buyers and sellers choose to have a lawyer draft a private sale agreement in Nova Scotia instead of using NSREC forms. This approach is common in private sales where no REALTOR® is involved.

Essential Clauses Every Nova Scotia APS Contains

Every real estate purchase agreement in Nova Scotia includes certain legal elements that make the contract valid and enforceable. These elements are required whether parties use a standard form or a private agreement.

The property identification section shows the legal description and civic address of the real estate. The purchase price states the total amount being paid and how the deposit is structured. The closing date indicates when ownership of the property transfers to the buyer.

Other legal elements included in a purchase and sale form:

  • Property details: Legal description, civic address, and Property Identification Number (PID)
  • Financial terms: Total purchase price, deposit amount, and payment methods
  • Timeline: Closing date and key deadlines for conditions
  • Inclusions: Fixtures and chattels that convey with the property

The agreement also includes representation and warranty clauses where the seller makes promises about the property's condition. An entire agreement clause states that the written contract is the only agreement between the parties, which replaces any previous verbal discussions.

Common Buyer and Seller Conditions

Conditions in an Agreement of Purchase and Sale act as protective clauses that allow a buyer or seller to exit the agreement if specific requirements are not met. These conditions have specified time frames and formal procedures for removal.

A financing condition allows the buyer to cancel if they cannot obtain a mortgage by a certain date. This condition usually ranges from 5 to 10 business days after the offer is accepted.

A home inspection condition gives the buyer time to arrange a professional inspection. The buyer can negotiate repairs, a price reduction, or choose to end the agreement if the inspection reveals significant issues.

The sale of buyer's property (SOP) condition makes the purchase dependent on selling the buyer's current home. If the buyer cannot sell their home within the agreed timeframe, they can exit the agreement.

To officially remove a condition, the buyer waiver of conditions form 408 is used. This form confirms that the condition has been satisfied or is being waived. Missing the deadline for waiving a condition can void the agreement.

Step-By-Step Timeline From Offer to Closing

The real estate closing in Nova Scotia process follows a set order of steps from initial offer through ownership transfer.

First, a realtor or lawyer prepares the Agreement of Purchase and Sale, which sets out the terms the buyer is offering. The offer is then delivered to the seller for review.

The seller can accept, reject, or make a counteroffer. This stage may involve several rounds of negotiation until both parties agree on all terms. Once both parties sign the final version, the agreement becomes legally binding.

Next, buyers and sellers work to satisfy any conditions in the agreement, such as obtaining financing or arranging inspections. Parties use Form 408 to confirm conditions have been met.

A lawyer examines the property's title in the land registry to confirm ownership and check for any liens or restrictions. As the closing date approaches, both parties sign the required transfer documents. On closing day, funds are transferred and keys are handed over.

Title Search and Migration Requirements

A lawyer plays a key role in confirming that the person selling a property is its true owner. Nova Scotia uses a land registration system to keep records of property ownership.

A title search reviews public records to confirm who technically owns the property and checks for any legal claims, such as unpaid taxes or liens. After the title search, the lawyer certifies that the seller is the legal owner.

Some properties were registered under an older deed system and require title migration to the current land registration system when sold. The responsibility for paying migration costs is usually decided in the Agreement of Purchase and Sale.

Property taxes and utility charges are divided between buyer and seller based on the closing date. An adjustment statement shows who pays what portion of each cost. Once the transaction completes, a new deed showing the buyer as owner is registered with the land registry office.

Costs and Taxes to Budget For

The purchase price is only one of several costs in a Nova Scotia real estate transaction. Both buyers and sellers have additional expenses beyond the property's price.

Buyers typically pay for the legal fees associated with title searches and mortgage paperwork, while sellers pay for deed preparation through their lawyer. The deed transfer tax applies when property ownership changes, with buyers paying this tax based on the purchase price.

Properties require migration fees if moving from the old deed system to the current land registration system. Registration fees also apply when transferring the deed to the new owner. The seller is responsible for covering the cost of a migration if it is required.

  • Buyer costs: Home inspection fees, appraisal costs, legal fees, deed transfer tax
  • Seller costs: Legal fees for deed preparation, migration (if applicable), real estate commissions (if applicable)
  • Shared costs: Property tax adjustments, utility adjustments

Special Schedules For Different Property Types

Some real estate transactions require extra forms or special clauses depending on the property type.

For instance, condominium purchases use Form 402 as a required schedule. This schedule includes information about the condominium corporation's reserve fund and requires review of the building's bylaws and financial statements.

New construction purchases use Form 403, which includes warranty protection and construction completion timelines. The agreement outlines the procedures for handling delays and change orders, as well as upgrades.

Vacant land purchases involve Form 404, which addresses environmental assessments, the availability of municipal services, and legal access to roads. The schedule covers building permits and zoning approvals required for future development.

How Private Sales Differ From REALTOR® Transactions

A private purchase and sale agreement in Nova Scotia happens when a buyer purchases directly from the seller without using a REALTOR® or MLS listing. This process shifts responsibilities from real estate professionals to the parties involved.

In private sales, lawyers usually prepare the Agreement of Purchase and Sale rather than using standard NSREC forms. These agreements can be tailored to specific needs but may lack standardized protections.

The deposit is typically held in trust by a lawyer rather than a brokerage's trust account. Buyers and sellers negotiate directly without an agent as an intermediary, which makes each party responsible for communicating their terms and concerns.

Property disclosure becomes the seller's responsibility, although completing a Property Disclosure Statement is not mandatory unless agreed upon in the contract.

Why a Lawyer's Review Matters

Agreements of purchase and sale are legal contracts that contain technical language and have long-term consequences. Each clause affects the rights and obligations of both parties.

Lawyers can identify clauses that may favour one party more than typical, such as unusual payment terms or repair requirements. They can also spot hidden obligations, such as the buyer being asked to assume existing contracts or settle liens.

Standard forms cover most situations, but unique circumstances may require modifications. Lawyers can add protective clauses or customize terms for delayed closings or specific improvements the property needs.

The purchase process involves coordinating with banks and the Nova Scotia Land Registry. Lawyers assist with this process as well, and will confirm the agreement's terms align with the lender's requirements, as well as ensure the ownership transfer is properly recorded.

LM Legal Solutions provides legal services for all aspects of real estate transactions throughout Nova Scotia. We have experience with residential homes, condominiums, new builds, and vacant land purchases.

Our team focuses on clear communication and considers each client's unique circumstances. Located in downtown Dartmouth, we serve clients throughout the Halifax Regional Municipality and the province of Nova Scotia.

A legal consultation can address your questions about agreements of purchase and sale or the closing process. Book a consultation with one of our lawyers.

FAQs About Agreements Of Purchase And Sale In Nova Scotia

Does an agreement of purchase and sale need to be notarized in Nova Scotia?

No, notarization is not required for an agreement of purchase and sale to be legally binding in Nova Scotia. The contract only requires both parties to sign it in writing to be enforceable under provincial law.

Who drafts the agreement of purchase and sale in a private sale without realtors?

In private sales, a lawyer for either the buyer or seller typically drafts the agreement. Engaging a lawyer during this process helps ensure the contract contains necessary legal terms to protect both parties' interests.

Are electronic signatures valid on Nova Scotia real estate purchase agreements?

Electronic signatures are generally accepted on real estate agreements so long as both parties agree to sign electronically. However, lenders or registry offices may still require original handwritten signatures for certain documents.

Title Insurance Nova Scotia: What Every Homebuyer Should Know

Purchasing residential property in Nova Scotia often involves new terms and concepts. One of the most important is "title." Understanding title is key to understanding title insurance, which is a common part of real estate transactions in this province.

Many first-time homebuyers hear about title insurance from their real estate lawyer, lender, or real estate agent. Title insurance relates directly to the legal ownership of the property you are purchasing.

Before learning about title insurance, it is helpful to know what "title" actually means in the context of real estate, which we describe in greater detail below.

What Is Title?

Title is the legal term for the right to own and control a property. Having title to a property means having the full legal right to use, sell, mortgage, or transfer that property.

A deed is the document that transfers title from one property owner to another. Title, however, is broader than just the deed—it includes all legal rights and interests attached to the property, such as the right to occupy, lease, or make changes to the land or buildings.

In Nova Scotia, a clear title confirms that there are no claims, liens, or disputes affecting the owner's rights to the property.

What Is Title Insurance?

Title insurance is a type of insurance policy that protects property owners and lenders against hidden problems with the ownership, or "title," of a property that existed before the date the insurance was purchased.

This insurance covers issues from the past, such as mistakes in public records, old unpaid debts attached to the property, or claims that someone else owns part of the property. It does not cover events or problems that happen after the policy is in place.

Key difference from other insurance: Title insurance provides backward-looking coverage for problems that already exist but haven't been discovered yet. Regular home insurance covers future events that might happen.

Is Title Insurance Mandatory in Nova Scotia?

Title insurance is not legally required when buying property in Nova Scotia. However, most mortgage lenders require buyers to have title insurance before they will provide financing.

It has become standard practice in most real estate transactions for title insurance to be included. Even when a buyer is not borrowing from a lender, many lawyers recommend title insurance as part of the closing process.

What Title Insurance Covers for Nova Scotia Buyers

Title insurance in Nova Scotia covers specific risks that relate to the ownership and legal status of a property. The policy addresses issues that existed before the purchase but were not discovered during the buying process.

Common coverage areas include:

  • Unknown liens: If the previous owners have unpaid debts (such as property taxes, contractor bills, or utility charges), these outstanding items could become the new owner's responsibility
  • Boundary or survey errors: Pre-existing mistakes in property lines, measurements, or legal descriptions can lead to title disputes with neighbours
  • Unregistered easements or encroachments: Situations where a neighbour's structure crosses onto the property or where utility access rights aren't shown in public records
  • Title fraud and forgery: Protection if someone falsely claims ownership of the property or if documents affecting the property's title have been forged
  • Zoning or permit violations: Coverage when previous owners made changes to the property without the required permits or if the property doesn't meet zoning rules

Common Exclusions to Know Before You Buy

Title insurance policies in Nova Scotia have exclusions—specific situations or problems that the policy does not cover.

Standard exclusions to title insurance include:

  • Known title defects: If a problem with the property's title is found and disclosed before the purchase, title insurance will not cover that issue
  • Environmental issues: Problems such as soil contamination, hazardous materials, or environmental cleanup costs
  • Indigenous land claims: Claims by Indigenous groups regarding land rights
  • Matters not in public records: Issues that aren't discoverable through a standard title search, such as unrecorded liens or private agreements

Title Insurance Cost in Nova Scotia

Title insurance in Nova Scotia is paid for with a single payment at the time of purchase or refinancing. The cost typically ranges from $250 to $500, depending on the property value and type of policy.

Once paid, the policy remains in effect for as long as the owner has an interest in the property. There are no annual fees or renewal charges for this coverage.

Lender Policy vs. Owner Policy

Title insurance policies in Nova Scotia come in two types, each serving a different purpose:

Policy Type Who It Protects Coverage Amount When Required
Lender policy The mortgage company/lender Up to the mortgage amount Usually required by lenders
Owner policy The property owner Up to the purchase price Optional for buyers (but highly recommended)

A lender policy protects the financial institution that provides the mortgage, and its coverage ends when the mortgage is paid off. An owner policy protects the homebuyer for as long as they own the property.

How Title Fraud Happens and How Insurance Helps

Title fraud is a risk in Nova Scotia real estate. It involves someone using deception or forged documents to interfere with the legal ownership of a property.

Common fraud schemes include:

  • Identity theft scams: Criminals use stolen personal information to pose as the property owner and sell or mortgage the property without the real owner's knowledge
  • Fake discharges or mortgages: Forged documents claiming a mortgage has been paid off when it hasn't, or registering fraudulent new mortgages
  • House-stealing schemes: Complete property transfer through identity theft and forged documents

Title insurance covers financial losses and legal costs if fraud results in problems with property ownership. The title insurance company works to defend the interests of the true owner and to restore their legal title.

Risks in Nova Scotia That Make Coverage Valuable

There are several risks specific to Nova Scotia that make title insurance particularly valuable to property owners:

  • Proximity to coastline: The proximity of your property to Nova Scotia's coastline can pose unique challenges. For instance, coastal erosion and storm damage can change property boundaries over time. Disputes sometimes occur regarding ownership of wharves, docks, or other waterfront structures.

  • Private road access rights: Rural parts of Nova Scotia often include properties accessed by private or shared roads. The legal right to use these roads may not be clearly recorded, which creates uncertainty about property access.

  • Historic deed gaps: Some properties have ownership records going back many years. Older properties may have missing, incomplete, or unclear documentation that can result in questions about legal ownership or boundaries.

Why a Lawyer's Opinion on Title Still Matters

Title insurance protects against certain risks that existed before the property was bought. However, it does not replace a lawyer's review of the title.

Namely, a lawyer conducts a detailed review of the property's title—first by searching public records and checking for anything that could affect ownership or use of the property. This review can identify problems such as liens, easements, or restrictive covenants that may not be covered by insurance.

LM Legal Solutions handles real estate transactions by reviewing title documents, explaining findings to buyers, and addressing any defects or issues that appear in the title search. This process helps clarify what title insurance covers and what it does not.

Next Steps for Peace of Mind on Your Closing Day

Title insurance in Nova Scotia addresses ownership risks that may not be obvious when buying a property. It protects against issues like unknown liens, boundary mistakes, and title fraud, but it does not cover every possible problem.

In Nova Scotia, title insurance is not a legal requirement, but lenders often require it for mortgage approval. Homebuyers can choose between a lender policy and an owner policy, or choose to purchase both.

A real estate lawyer reviews the title, explains what is covered by insurance, and addresses all issues before closing. To discuss the specifics of title insurance for your situation, contact LM Legal Solutions.

FAQs About Title Insurance Nova Scotia

Can I cancel my title insurance policy and get a refund?

Title insurance cannot be cancelled after it is issued because the policy covers events that happened before the date it was purchased.

Does title insurance cover condominiums differently than houses?

Title insurance for condominiums provides protection for the individual unit, such as issues with the unit's title or boundaries. Problems involving shared areas managed by the condominium corporation are not covered.

What happens if I discover a title problem after buying my home?

If you have title insurance and discover a covered problem, the first step is to contact the insurance company's claims department. They will investigate the issue and may cover legal costs or financial losses according to your policy terms.

Do I need both a survey and title insurance when buying property?

A survey shows exact property boundaries at a specific point in time, while title insurance provides ongoing protection against various title-related risks. Many buyers choose to obtain title insurance instead of ordering a new survey, as most lenders accept title insurance as an alternative.

A Real Estate Lawyer’s 2025 Guide to Purchasing Property in Nova Scotia

Purchasing real estate is an exciting endeavor, but it's crucial to understand the legal landscape to navigate the process smoothly. From understanding property rights to ensuring a clear title a Nova Scotia Real Estate Lawyer will play an important role in protecting your interests as a buyer. In this brief overview, we'll highlight some of the essential legal considerations when purchasing property in Nova Scotia, including:

The Agreement of Purchase and Sale

The foundation of any real estate transaction is the contractual agreement between the buyer and seller. In Nova Scotia, offers to purchase are typically presented using standard forms provided by the Nova Scotia Real Estate Commission. Your Realtor will assist you in negotiating the terms of the Agreement and preparing the appropriate documents.  These agreements outline key terms such as the purchase price, deposit amount, closing date, and any conditions that must be met before the sale can proceed. It's crucial to review these agreements carefully and seek legal advice if needed to ensure your interests are protected.  The real estate lawyer review condition gives your lawyer time to review the contract and ensure your interests are protected.

For a detailed breakdown of what an Agreement of Purchase and Sale in Nova Scotia includes, read our full guide to Agreements of Purchase and Sale.

Due Diligence

Conducting due diligence is a critical step in the real estate purchasing process, allowing buyers to uncover any potential issues or risks associated with the property. This may include obtaining a property survey to verify boundaries, conducting a title search to ensure clear ownership, and inspecting the property for structural defects or environmental concerns. Working with a qualified real estate lawyer can help ensure that due diligence surrounding title is completed thoroughly and effectively. When reviewing title, your lawyer will be looking for things such as liens, easements effecting the property or restrictive covenants that could impact your intended use of the property.  You will work with other professionals such as your mortgage broker and home inspector to ensure other conditions are satisfied. 

Title Insurance

Title insurance provides protection against losses arising from defects in the title of the property. Obtaining title insurance is a common practice to safeguard against risks such as unknown liens, encroachments, or legal disputes. While title insurance is not mandatory, it offers peace of mind to both buyers and lenders by providing financial protection against unforeseen title issues that may arise after the purchase.

For a detailed breakdown of what title insurance covers, common exclusions, costs, and risks specific to Nova Scotia, read our full guide to Title Insurance Nova Scotia.

Closing Process

The closing process is the final step in completing your real estate transaction. On closing day, funds are exchanged, and legal ownership of the property is transferred from the seller to the buyer. Your real estate lawyer will oversee the closing process, ensuring that all legal requirements are met, and facilitating the transfer of keys and possession of the property. It's essential to be prepared for closing costs, which may include legal fees, land transfer taxes, and other miscellaneous expenses.

Navigating the legal aspects of purchasing real estate in Nova Scotia requires diligence, attention to detail, and expert guidance. By understanding property rights, reviewing contractual agreements, conducting due diligence, obtaining title insurance, and completing the closing process, buyers can confidently navigate the complexities of the real estate market. 

With the guidance of our experienced real estate practitioner, Jennifer Chiasson at LM Legal Solutions, you can rest assured that the process of purchasing property in Nova Scotia can be a rewarding and fulfilling experience for all parties involved. Book an initial consultation below or call 902-466-2200 to talk to our real estate lawyers about all your residential and commercial real estate needs.

Everything You Should Know About a Will, Personal Directive and Power of Attorney

At LM Legal Solutions, we understand that life is full of uncertainties, and one of the best ways to protect your loved ones and your assets is through proper estate planning. Today, we'd like to explain, in simple terms, why having a Will, a Personal Directive and a Power of Attorney is crucial. We will be covering:

What Is a Will?

A Will is a legal document that allows you to appoint a person or people who will manage your estate and specify how your assets should be distributed after you pass away, thus protecting your wishes. Without a Will, the province’s laws dictate the distribution of your assets, which may not align with your wishes. By creating a Will, you can ensure your loved ones are taken care of financially, appoint a guardian for minor children, and leave a lasting legacy by supporting causes that are important to you, while also considering how your enduring power attorney will take effect.  Having a Will prepared by an experienced estate planning lawyer can help minimize disputes among beneficiaries and ensure your wishes are honoured.

Understanding The Role of Power of Attorney in Managing Your Affairs

A Power of Attorney is a document that designates someone to make financial and legal decisions on your behalf if you become unable to do so. A Power of Attorney has become an essential tool in today’s world.  A Power of Attorney allows you to appoint an individual that you trust to ensure your affairs are managed as you age.  This will help ensure your bills, taxes and investments are managed effectively and in your best interests and avoid costly court proceedings to appoint a guardian in the event of your incapacity.

How a Personal Medical Directive Can Guide Your Healthcare Decisions

A Personal Medical Directive, also known as a Living Will or Advance Healthcare Directive, allows you to outline your medical preferences if you can't make these decisions for yourself. This document, known as a Power of Attorney, allows someone to make decisions on your behalf regarding financial matters if you become incapacitated. This helps doctors and family members understand your treatment choices and gives you control over life-sustaining medical procedures. Having a Medical Directive in place can relieve your loved ones from having to make difficult decisions during a difficult time.

Contact Us for Personalized Estate Planning

By having a Will, Power of Attorney, and Personal Medical Directive in place, you can take control of your future and provide your family with peace of mind. At LM Legal Solutions, our experienced estate planning attorneys are here to assist you in creating these essential documents, such as your Will, personal directive and power of attorney customized to your unique circumstances.

To get started or review your existing estate plan, please contact us at 902-466-2200, email jennifer@lmlegalsolutions.ca or submit the contact form below. We are committed to making the estate planning process as easy and stress-free as possible.

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The Intersection Between Family and Estate Law

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Family and estate law often overlap as parents and spouses begin to plan for their future. A Will is a document that outlines how you wish to distribute your property after your death. A Will does not affect your assets until death and can only distribute what a person owns at death.

A Will can also provide guidance on how you want any children under the age of majority to be cared for. Wills are very important instruments to have for setting out your affairs and making sure your family is protected. We will be covering:

Impact of Family Changes on Wills

There are many ways in which a Will can intersect with family law. The first, and likely most important, is how it can affect the custody of your children if you pass away before they reach the age of majority. This can become particularly complex if you are divorced or separated and do not want the other parent to assume custody of your children on your death. Appointing a guardian for your children in your Will is not legally binding, and can be challenged by the other parent, or another family member. It will be important for you to consult with a lawyer experienced in Wills and estates on this issue, given the impact your divorce documents and the law has on your wishes.

 

Wills are also impacted by a separation or divorce. Wills are not changed because you separate and if you have appointed your former spouse as your Executor, that does not change until you change your Will. Separation Agreements can include clauses that require you to name the other spouse on life insurance or other benefits and you must provide both your lawyer and your employer with the details of your Agreement as it can alter issues of pensions and ownership of assets. It is important to discuss any changes to your family, including Court orders and Separation Agreements with a lawyer experienced in the area of wills and estates.

Even a divorce does not void a Will. Following a divorce, if a new Will was not created, the old Will survives, and the Courts then treat the former spouse as if they died before you so they do not inherit twice. This would mean that the old Will is still valid but if the former spouse was appointed executor, they would not be able to act and the alternate executor would step in. Also, any gifts to the former spouse would not happen.

Marital Changes and Your Will

Marriage can also alter a Will. Generally speaking, your Will is revoked upon marriage under the Wills Act. One exception to this is if your Will is made in contemplation of marriage and states that you are making a Will because you intend to marry your soon-to-be spouse, who must be named.

Accordingly, whether you are contemplating marriage, separation, or planning for your children’s future, it is important to remember that you need to review your estate plans as they will be impacted by these decisions.

Consult with LM Legal Solutions Estate Lawyers

The knowledgeable team at LM Legal Solutions is equipped to help you navigate the complexities of family and estate law. With our dedicated expertise in these areas, we are committed to providing you with the guidance you need to make informed decisions about your future. We encourage you to reach out for a personalized consultation to discuss how we can assist with your specific legal needs in family and estate law.

For more information, complete the form below:

Adoption in Nova Scotia: A Brief Overview

Adoption in Nova Scotia is governed by the Children Family Services Act and requires both the approval of the Court and the provincial Department of Family Services.  

Types of Adoption

There are different types of adoptions, which can include, but are not limited to:

●     Private Adoptions (Stepparents adopting step children, family members adopting children, etc.);

●     International Adoptions (adopting a child who is living outside of Canada); and

●     Public Adoptions (children in the care and custody of the Department of Community Services).

In all circumstances, adoptions must first have the approval of the Department of Community Services, and depending on the type of adoption, the approval requires that a home study be completed, which can take several months.

The Adoption Procedure in Nova Scotia

Once the approval is provided by the Department of Community Services, the parents can then begin the process of filing with the Court to have an Order of Adoption. 

In private adoptions and with international adoptions, several consents must be obtained before a court will grant an adoption.  First, the parents of the child must consent to the adoption. “Parent”  under the Children Family Services Act  can include:

●     The mother of the child

●     The father of the child by marriage or relationship

●     An individual having custody of the child, not including a foster parent

●     An individual with access or support obligations to the child

●     An individual who has acknowledged the parentage of the child

In addition to the parent or guardian’s consent, if the child to be adopted is over the age of 12, their consent must be obtained. In the case of adult adoptions, if the person being adopted is married, their spouse must also consent to the adoption.

Consent and Legal Implications

In some cases, it may not be appropriate, or possible, to obtain one of the consents needed. In those cases, you can apply to the court to dispense with that person’s consent ;– if successful, you can move forward without the consent.

Adoptions have permanent and long-lasting effects on many different rights and responsibilities as they relate to the person being adopted. Once an adoption has been processed, the person who has applied for the adoption becomes the child’s legal parent. This can have effects on your estate, and a separation (if the adoptive parents separate).

Legal Guidance

It is important to consult with a lawyer if you are intending to pursue an adoption. The knowledgeable lawyers at LM Legal Solutions can assist you navigate the complex requirements of completing an adoption in Nova Scotia.

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The Legal Implications of Void and Voidable Marriages

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When a marriage is declared void, it is as if the marriage never existed in the first place. A marriage can also be voidable, which is a type of marriage that valid until a party asks the court to declare them void, and that request is granted. This is sometimes referred to as an annulment. Annulments are very rare, and few marriages qualify for this relief.

Often people confuse the concept with short marriages. Many believe they can obtain an annulment after having been married for only a short period– sometimes as short as even a few days or weeks. But this is not the case. A short marriage is not always a void or voidable marriage. Unless your marriage is declared void, you are required to follow the regular divorce process.

Property Division in Void Marriages

A void marriage has different implications on property division than a valid marriage. As noted above, a void marriage is as if the marriage never took place. Therefore, the Matrimonial Property Act (“MPA”), would not apply, and the presumption of the equal division of property between married couples would not occur.

The only exception to this is noted under s. 2(g)(iii), which indicates the MPA will apply to a couple who has gone through a form of marriage in good faith that is void, and are living together, or have lived together, within the preceding year. To qualify for relief under the MPA by this section, the person seeking relief needs to establish that the marriage occurred in “good faith” – that is, they married the other person with the belief that they had the capacity to marry. You cannot deceive someone into marrying you knowing you do not have the capacity to marry and then seek the protections and advantages the MPA offers.

Capacity to Marry and Legal Considerations

It is also worth noting that when we say “capacity to marry,” we generally mean a person who is the required age to marry, of sound mind, not currently married, marrying of their own free will, and not blood-related to a certain degree.

Factors Considered by the Court for Void Marriages

In determining whether a marriage is void, the Court can consider (but is not limited to) the following factors:

●     Whether the parties are related to each other by blood;

●     Whether one or both parties had the capacity to marry, which includes being too intoxicated to understand the vows;

●     Whether one or both parties were under the age of majority (19) at the time of the marriage and did not have a parent’s permission to marry;

●     Whether one or both parties consented to the marriage;

●     Whether one or both parties were married to another person at the time of marriage—not divorced, or seeking to be married to more than one person.

Different factors may be considered when determining whether the marriage is voidable.

Void and voidable marriages can be complicated to navigate. We encourage anyone with questions about whether this form of relief is right for their case to contact the lawyers at LM Legal Solutions to discuss this, or complete the form below to book a consultation.

Family Violence in Canada's Divorce Act

With the amendments to the Divorce Act in 2021, we saw a legislative emphasis on the concept of family violence for legally married couples. Family violence was previously known as “domestic violence.” It has now been defined under the Divorce Act as:

Family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct and includes:

  • Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person.

  • Sexual abuse.

  • Threats to kill or cause bodily harm to any person.

  • Harassment, including stalking.

  • The failure to provide the necessaries of life.

  • Psychological abuse.

  • Financial abuse.

  • Threats to kill or harm an animal or damage property.

  • The killing or harming of an animal or the damaging of property; (violence familiale)

How Family Violence Impacts Parenting Decisions

With this definition, the Court is tasked with considering the impact of family violence in relation to the “best interests of the child” test under s. 16(3)(j) of the Divorce Act. It is this test that the Court considers when making determinations on the decision-making and parenting of a child. The Divorce Act goes even further with the concept of family violence, outlining at s. 16(4) several factors relating to it that the Court may consider, including:

  • The nature, seriousness and frequency of the family violence and when it occurred.

  • Whether there is a pattern of coercive and controlling behaviour in relation to a family member.

  • Whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence.

  • The physical, emotional and psychological harm or risk of harm to the child.

  • Any compromise to the safety of the child or other family member.

  • Whether the family violence causes the child or other family members to fear for their own safety or for that of another person.

  • Any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

  • Any other relevant factor.

The inclusion of these provisions in the Divorce Act outlines the seriousness that the federal government wants the Court to take regarding family violence and the impact it has on children. Our provincial legislation, the Parenting and Support Act, has also adopted a definition of family violence that applies to families that are not legally married.  The best interests of the children are now required to be considered based on the impact of family violence, regardless of the family structure.

The idea that family violence has no impact on children, and no impact on the ability to parent, is no longer a reasonable assumption.

Contact Us

Accordingly, family violence can be a significant concern in the best interests test and is something the Court takes very seriously. If your matter involves family violence, please contact our office to discuss the options available to you in addressing parenting and decision-making.

Marriage vs Common Law: What Are the Differences?

Marriage vs Common Law: What Are the Differences?

Family law in Nova Scotia applies a distinct difference between common law relationships and marriage. While some provinces may allow common law, or cohabitation, to take on the rights and responsibilities of marriage after a certain period of time, this is not the case in Nova Scotia.

What constitutes common law?

A common law relationship is simply the act of living together in a marriage-like relationship without actually being legally married. It does not require any kind of legal process to create a common law union. The definition of common law partnership also differs depending on the laws applied. For example, the Canada Pension Plan states that two people are in a common law relationship after a year of cohabitation. The Parenting and Support Act, on the other hand, requires two years of cohabitation before a relationship can be described as common law.

Voice of the Child Report

The focus of the Supreme Court (Family Division) in matters involving children will always be, “What is in the child’s best interests?” It is generally accepted that it is not in the child’s best interests to testify in matters involving their parents. As such, it is extremely rare for children to be called as witnesses.

 

This presents a unique challenge to the Court, and to parents, when a child is old enough, or mature enough, to tell their preferences in parenting arrangements or on parenting issues. Under both the Divorce Act and the Parenting and Support Act, the child’s views and preferences can be a consideration in determining their best interests. So how has the Court adapted to this unique challenge?

 

There is a process available through litigation known as a “Voice of the Child Report.” When conducted, a third-party professional will interview the child and will advance their views and preferences in a written report to be filed with the Court. This allows the professional to be called as a witness instead of the child.

 

When Should a Voice of the Child Report Be Ordered?

A Voice of the Child Report is not a mandatory step to take, and is is not automatic. Parents may disagree as to whether one should be ordered for a variety of reasons – maybe the child, although older, is not as mature as their age, maybe the child has been coached or is the subject of parental alienation (link to blog on parental alienation). In cases where parents disagree as to whether a Voice of the Child Report should be ordered, the presiding justice will need to make that determination based on a variety of factors and considerations. These can include, but are not limited to:

 

  1. The nature of the contentious issues

  2. The age and stage of development of the child

  3. Maturity of the child

  4. Whether the views can be reliably ascertained

 

E.P. v. S. P., 2016 NSSC 173, para 27

 

A Voice of the Child Report can be helpful in litigation, but they are not always appropriate in the circumstances. Our lawyers at LM Legal Solutions can assist you in determining whether this is something that would be of help to your case, and whether or not it would be reasonable to pursue one. Contact us today at (902) 466-2200 or submit the form below to book your family law consultation.

Understanding Parental Alienation

Parental alienation is a concept that the Court does not take lightly and is a label that is not easily achieved. It involves a finding of fact and will depend on the unique circumstances of each case. It is more than just name-calling by a parent. The Honourable Justice Chiasson, in Her Ladyship’s decision of Williams v Power, 2022 NSSC 156, at paragraph 72 adopts a definition of parental alienation which includes:

“One parent systematically, through a variety of physical, emotional, verbal, contextual, relational set of maneuvers systematically reduces the value, love, commitment, relationship, involvement of the other parent by minimizing, criticizing, devaluing that parent’s role. It can involve children having their sense of history being “re-written” by a parent’s redefinition of history, reframing things, repetitively talking about things. It can involve sometimes very subtle and sometimes not so subtle suasion, coercion, direction, misrepresentation and so on.”

Proving Parental Alienation in Custody Disputes

The person alleging alienation bears the burden to prove it has occurred, and it is a high burden to prove. It is notable that parental alienation will not always be found in every situation where children resist contact with a parent. It is also not found in every high-conflict situation. Individuals must therefore be careful in advancing this claim.

The Impact of Parental Alienation: Legal Guidance and Support

Because of its very nature, parental alienation can be severe and destructive. It can have significant, long-lasting, damaging effects. Families experiencing parental alienation may be wondering what their options are, and how to best navigate the challenges it can present. Contact our lawyers at Lenehan Musgrave LLP to assist you in preparing to move forward in addressing parental alienation issues. You can book a family law consultation by completing the form below or giving us a call at (902) 466-2200.

Jennifer Chiasson Joins Lenehan Musgrave LLP

Lenehan Musgrave Law is excited to announce that Jennifer Chiasson has joined the firm as our newest Associate Lawyer as of April 2024. Jennifer brings more than 10 years of general practice experience in the areas of family law, small business, real estate, and estate planning.

Jennifer is a practicing member of the Nova Scotia Barristers’ Society, as well as a member of the Canadian Bar Association, and the Real Estate Lawyers Association of Nova Scotia.

Her diverse practice experience expands Lenehan Musgrave’s overall service offerings to additional areas that complement our existing Family Law services.

You can reach Jennifer at (902) 466-2200 or at jennifer@lenehanmusgravelaw.ca

View Jennifer’s BIO

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Enduring Power Of Attorney Nova Scotia: Complete Guide
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Agreement of Purchase and Sale: Nova Scotia Requirements
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Jennifer Chiasson
Jennifer Chiasson
A Real Estate Lawyer’s 2025 Guide to Purchasing Property in Nova Scotia
Jennifer Chiasson
A Real Estate Lawyer’s 2025 Guide to Purchasing Property in Nova Scotia
Jennifer Chiasson
Jennifer Chiasson
Everything You Should Know About a Will, Personal Directive and Power of Attorney
Jennifer Chiasson
Everything You Should Know About a Will, Personal Directive and Power of Attorney
Jennifer Chiasson
Jennifer Chiasson
The Intersection Between Family and Estate Law
Jennifer Chiasson
The Intersection Between Family and Estate Law
Jennifer Chiasson
Jennifer Chiasson
Adoption in Nova Scotia: A Brief Overview
Emily Bartlett
Adoption in Nova Scotia: A Brief Overview
Emily Bartlett
Emily Bartlett
The Legal Implications of Void and Voidable Marriages
Emily Bartlett
The Legal Implications of Void and Voidable Marriages
Emily Bartlett
Emily Bartlett