Formalities required for a Will to be valid
In the next series of blogs, I’m going to be talking about legal Wills. In a previous blog, I talked about what an “estate” is and what kinds of assets / properties go into it and what kinds of assets / properties can be transferred outside of it. In this blog, I’m going to discuss some of the formalities that are required for a Will to be valid and legal and enforceable in Canada. Mind you: provincial laws which govern Wills differ slightly from one province to the next, but they all typically share the same requirements when it comes to writing, signing and witnessing Wills. So let’s get into it, shall we?
1. In Writing
The Will must be in writing. No verbal Wills are recognized. Enough said.
2. Signed at its end
The Will must be signed at its end by the Testator / Testatrix (that’s the person making the Will).
The Testator / Testatrix must sign the Will in the presence of witnesses. There’s a caveat: the Testator / Testatrix’ signature can be made by someone else but it must be acknowledged by him or her in the presence of two (2) witnesses both present at the same time. For their part, the witnesses don’t have to know what’s being said in the Will. They must be adults in the Province and they must be of sound mind. They must witness the Testator / Testatrix signing – typically in blue pen (instead of black) to signify an original signature instead of a photocopy. After the Testator / Testatrix signs, each of the Witnesses must also sign in the presence of the Testator / Testatrix and the other witness. So everyone must sign in the same room and preferably using the same blue pen. Note: a Will can be witnessed by the Executor and Estate Trustee, which is the person named in the Will who is responsible for administering the Will. A Will can also typically be witnessed by someone who is a beneficiary named in the Will; however, gifts made to them will be presumed to be invalid – so it’s best not to make them witnesses!
4. Age of Majority
The testator must typically be an adult in their province (although there are exceptions to this rule).
5. Holograph Wills
Holograph wills are hand-written by the Testator / Testatrix and are considered to be valid Wills in some provinces (but there are significant limitations to them). Importantly, they don’t need witnesses. The problem with these types of Wills is that they may be incomplete, drafted poorly, hard to interpret, not account for all situations, and no one may know they even exist. They can be done in a rush situation with little thought given to things like: tax and wealth planning or what happens if a named Estate Trustee or Custodian / Guardian of your minor child is unwilling or unable to act. What happens if a Beneficiary isn’t around to receive their gift? These things are typically contemplated and addressed in a comprehensive formal Will.
6. Wills made under the Indian Act
The Indian Act governs the requirements of Wills for registered Indians and provides that they need not comply with the formal requirements of provincial Wills laws. Essentially, a Will made by a registered Indian is “any written instrument signed by an Indian in which he indicates his wishes or intention with respect to the disposition of his property on his death”: see section 45(2).
7. Testamentary Capacity
In addition to meeting the formal requirements set out above, in order for a Will to be valid, the Testator/ Testatrix has to have something called testamentary capacity. What does this mean? Well, the Testator / Testatrix has to understand that they are making a Will and what the result is, be free of mental disorder, have a sense of the type of property that they have and are disposing of, and be aware of some of the claims that may be made by persons against their estate / Will (e.g. spouses, dependants, etc.). Now, the Testator / Testatrix need not know every single asset or property they have; but they should have an understanding of the extent of which they are giving to each beneficiary and the nature of the claims of others who are being excluded. With certain exceptions (e.g. those in the armed services creating a Will or if they is or have been married), minors are presumed to not have sufficient testamentary capacity.
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The Will-O-Matic is a very dynamic, comprehensive, and flexible online program that shows you how to write a Will. It has been featured in countless media spots (including the Globe and Mail, CTV News, National Post, and more). Over 20,000 people bought the Will-O-Matic since it was released in 2012. The Will-O-Matic is available for the following provinces:
- British Columbia
- New Brunswick
- Nova Scotia
The first version of the Will-O-Matic was well-beyond anything else out there. And I noticed that some competitors were trying to copy us. That’s a great compliment. But they don’t have what we have. It took countless time, money and effort to make the Will-O-Matic what it is today. And here’s where we stand:
- The Will-O-Matic is based on provincial Wills laws. I haven’t seen anyone else go to that length. They tell you their product is good for “Canada”, but it’s not. They don’t use the right language. So why risk using their product.
- The Will-O-Matic is more comprehensive than anything else out there.
- I (a Canadian lawyer) created the Will-O-Matic.
- The Will-O-Matic allows you to edit for free for the first year; other products give you a one-shot type of deal (but you can always pay more to edit).
- The Will-O-Matic comes with comprehensive signing instructions to help you make sure you don’t enter the Will incorrectly and thereby render it invalid.
- The Will-O-Matic comes with a comprehensive and regularly updated eBook (for Ontario, it’s over 70 pages long!) about Wills in your Province. This just goes to show the level we go to when it comes to putting a high quality product on the market.
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How to Make a Will
So, if you’re looking to write your own Will, you can do so using the Will-O-Matic Wizard. This Wizard takes you through an online questionnaire. There’s loads of questions, tips, options, and guidance along the way. At the end of the process, you’re able to download your own .pdf Will.
A Will is simply a declaration of your wishes concerning your property and assets when you die. You can do things like appoint a representative of your estate, appoint someone to be responsible for your minor children, and explain how you want your assets to be divided when you pass (i.e. not according to government rules, but according to your own wishes).
Once you’ve make the Will using the Will-O-Matic Wizard, you must sign it properly in the presence of appropriate witnesses. Then, we suggest you keep the Will in a safe place and give your Estate Trustee access to know it and let him or her know where it is.