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Mar

8

How to Write a Will: Part 2 (Lawyer Needed?)

Michael CarabashPlease note that the information provided herein is not legal advice and is provided for educational purposes only. If you need legal advice with respect to how to write a will, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms).

In this blog, I’ll discuss whether a person needs a lawyer to prepare their will. The simple answer is no. The longer answer is: it’s probably in your best interests to have a wills and estates lawyer to draft and/or review your will.

There are only a few things that are needed in order for a will to be valid, binding, and of full legal force and effect. But if you don’t do these basic things properly, the will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years, etc. (you get the point).

First, in Ontario, for a will to be valid, it must be in writing. So says the Law Reform Succession Act. The testator (i.e. the person making the will) must also sign the will before two witnesses, who must also acknowledge that this was done (in the presence of the testator). The testator’s signature must be at the end of the document, but can follow a blank section on the page after the concluding words of the will. Neither of the witnesses can be beneficiaries (and this has been used to challenge wills before). I say again:beneficiaries under the will must never witness the testator’s signature. While there may be other requirements for a will to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the will as litigation-proof as possible.

First, a lawyer will deal with the issue of capacity – i.e. does the testator have sufficient mental capacity to enter into the will. Does the testator understand the nature and consequences of the will or is their mentality affected by illness, age, etc.?

Next, a lawyer will try to make sure that the testator is not entering the will as a result of some duress or improper or undue influence from an external force. The testator must enter the will voluntarily or else the will may be later contested.

Next, a lawyer will strive to ensure that all of the information-gathering is completed and due diligence has been conducted with respect to the testator’s income, assets, liabilities, and instructions.

Finally, a lawyer will use the appropriate language and precedents to give clear effect to the testator’s wishes and instructions.

For these reasons, it’s generally advisable to contact a lawyer (e.g. by making a post on Dynamic Legal Forms) when you need to write or update your will.

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