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How to ensure your Will speaks for you

By  Nerissa Flores, Catholic Register Special
  • October 31, 2018

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

There is, of course, a means by which you can do that — 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 (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 effects — 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 that need special care and attention.

It stands to reason that being a valuable document, you would want to ensure that your Will clearly and specifically meets all the requirements of validity, represent your free will and can be executed properly. In Canada, there are three types of Wills: the formal Will, holographic Will and the notarial Will (only used in Quebec):

FORMAL WILL

• A typed or computer printed document.

• Testator has to be mentally sound and 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).

• All pages must be initialed by the testator and the witnesses.

• After signing the Will, the witnesses sign 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.. 

HOLOGRAPHIC WILL

• Less formal.

• Testator has to be mentally sound and should not be a minor.

• Must be entirely handwritten by the testator, signed and dated.

• Does not require witnesses or affidavits, and can be prepared 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 … Often subject to misinterpretation and challenge.

NOTARIAL WILL (Quebec only)

• Testator has to be mentally sound and should not be a minor.

• Must be drawn up by a notary and read by the notary to the testator.

• Must indicate the date and place where it was made.

• One witness required (although in certain cases, the presence of more than one witness is required).

• Must be signed by testator, the notary and the witness, in each other’s presence.

• Notary keeps the original document and registers it in the Registres des dispositions testamentaires et des mandas de la Chambre des notaires du Québec.

• Upon the death of the testator, a notarial Will does not need to be probated.

NOTES: Changes to a Will can be made via a codicil but must meet the same conditions as a Will … Testator must have testamentary capacity at the time he/she made the codicil or executed the new Will.

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, itemizes the distribution of the estate, names guardians for minors (if applicable) and sets up trusts for them and has a signature page for the testator and two witnesses to sign (if applicable).

It should be noted that a video Will, audio Will or a 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 it suits your circumstances, a do-it-yourself Will kit is valid if it follows the conditions of a formal Will. 

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

A lawyer can also make notes on your mental capacity to confirm 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.

(Flores is the manager of Planned Giving and Personal Gifts at the Archdiocese of Toronto. This article is intended as a guide only and is not considered a comprehensive legal resource. The information provided does not replace professional advice.)

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