Know your Wills

Have you ever wondered what it would be like to “speak” from the grave and tell your loved ones how you would like things handled after you die?

There is a means by which you can do exactly that, and that is none other than through your Will.

A Will gives voice to your wishes after you have passed and may very well be your legally documented “doppelganger.”

A Will is a legal document that allows you, the person making the Will (called a testator), to name a person or persons who will carry out the terms of your Will, settle your affairs and assign how and to whom your assets (i.e., property, investments, money, personal items) will be distributed after you pass. It likewise allows you to name a guardian to care for your loved ones, especially minor children or dependents who need special care and attention.

It stands to reason that, being a valuable document, you would want to ensure your Will clearly meets all the requirements of validity, represents your free will and can be executed properly.

In Canada, there are three types of Will: the formal Will, holographic (or handwritten) Will and notarial Will. The last one is only used in Quebec.

Formal Will

• A typed or computer printed document.
• Testator must be mentally sound, should not be a minor.
• Dated and signed by testator in the presence of at least two witnesses (of legal age and they cannot be beneficiaries or spouses of beneficiaries).
• Witnesses must also sign at the bottom of document and indicate their name, address and, if possible, occupation.
• All pages must be initialed by the testator and witnesses.
• After signing the Will, the witnesses sign a written amending document called an affidavit, wherein the witnesses must swear that they saw the testator sign the Will, and that they have no reason to believe he/she was not capable of making the Will.

NOTES:

• A testator cannot just change the Will by marking or crossing out certain parts of it; handwritten changes may not be valid especially if these were not signed by the testator and the two witnesses.
• Once signed and witnessed, the testator cannot add anything else below the signature portion of the Will, as these will not be considered.
• Changes can be made by executing a typed codicil (an amending document that only changes part of the Will) or by making an entirely new Will that revokes the previous one.
• Testator must have testamentary capacity at the time he/she made the codicil or executed the new Will.

Holographic Will

• Less formal.
• Testator has to be mentally sound and should not be a minor.
• Must be entirely handwritten by the testator.
• Must be signed and dated.
• Does not require witnesses or affidavits, and can be prepared personally by the testator.

NOTES:

• Some provinces in Canada do not recognize a holographic Will (e.g., British Columbia).
• Partially handwritten Wills, such as fill-in-the-blank forms, do not meet the requirements of a holographic Will.
• Typed documents cannot be incorporated as part of a holographic Will.
• Handwritten alteration will only require the signature of the testator.
• Often subject to misinterpretation and challenge.

The structure of a Last Will and Testament in any jurisdiction in Canada is basically the same:

• It identifies the person creating the Will.
• Revokes all previous Wills.
• Names a trustee/executor to carry out the intentions of the Will.
• Itemizes the distribution of the estate.
• Names guardians for minors (if applicable) and sets up trusts for those minors.
• Has a signature page with space for the testator and two witnesses to sign (if applicable).

It should be noted that a video Will, audio Will or digital Will is not considered as valid. The law still stipulates that, to be valid, a Will must be on paper and signed and, if applicable, witnessed.

If one’s estate is foreseen to be large and complex and involves specific nuances (e.g., blended families, beneficiaries not in Canada), it might be better to consider getting professional advice from a lawyer. A lawyer can help you understand what you need to do and why, and makes sure that your Will follows the laws of your province.

A lawyer can also make notes on your mental capacity to confirm that you are mentally fit when you made your Will. It may be more costly than doing the Will yourself, but the cost is well worth it when you consider the potential problems you’ll avoid.

The last thing you would want to leave your loved ones with would be the headaches and heartaches of an invalid Will.

(Note: This article is for informational purposes only. It should not be construed as legal advice. Please seek independent legal advice tailored for your situation.)