What is a Will?

A Will is a legal expression of the disposition of your estate upon your death. It can also include guidelines for the disposition of your remains and funeral arrangements. 

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Do I need a lawyer to make my documents?

No, generally speaking you do not need a lawyer or a paralegal to make your documents. You can make your own Will without the need for anyone else except for 2 witnesses to sign who are not beneficiaries nor related to beneficiaries named in your Will. Although it is strongly recommended that you seek the assistance of a legal professional to help you.

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​How old do I have to be to make estate planning documents?

The age at which you need to be to make certain estate planning documents varies across the provinces and territories. Unless you are in the military, in order to make a legally valid Will in Canada, you must be the age of majority in your province/territory. The same rule applies for making Enduring Power of Attorney documentation.

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What makes a Will valid?

To be valid, the maker of the Will (known as the “Testator”) MUST have the required mental capacity to give instructions for the creation of their Will and also at the time of signing the Will. The Will must also be signed in accordance with the requirements set out in law (dated, signed and properly witnessed).

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Should you have any questions/concerns about mental capacity, please seek the assistance of qualified legal and medical practitioners.

 

Why should I have a legally valid Will?

The most important reasons why you should have a Will are:

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• if you have children under the age of majority (either 18 or 19 years depending on your province or territory) - a Will allows you to appoint a Guardian for those minor children.

• if you believe your children are not responsible enough to inherit your estate at the age of 18 or 19 - a Will allows you to establish a trust for your children to receive the entire share or portions of their share of your estate at an age or ages older than the age of majority.

• if you are in a common law relationship and you want to provide for your common law partner -  your common law partner may not yet fit the definition of "spouse" under your jurisdiction's legislation so as to entitle him/her to a portion of your estate after your death.  In some jurisdictions, the law states that you and your common law partner must: 1. have lived together continuously for a period of not less than 3 years; 2. have a child of the relationship;  or 3. have entered into an adult interdependent partner agreement.

• if you are single with no dependents - if you would like to gift to someone other than distant blood relatives, you should prepare a Will.

• if you own real estate or have assets in your name only - Financial Institutions and Land Titles require a Letters/Grant of Probate or Letters/Grant of Administration be obtained for property that you own in your name only.  in the absence of a Will, interested parties, assuming there are any, will be required to step up to the plate and apply for Letters/Grant of Administration for the authority to deal with your estate. This may result in lengthy litigation amongst family members which in turn eats up estate assets.  More importantly, the court might end up appointing someone to deal with your estate that you would have been opposed to.

• if you are part of a blended family - step children are excluded from the definition of children under our legislation and so they will not inherit from your estate. Similarly, if you have begun to co-mingle assets with your new spouse, but have children from a previous relationship that you would like to ensure receive something upon your death or upon the death of both you and your spouse, then you want to consider preparing a Will or Mutual Wills.

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How can I make my own Will?

Simply download the Will Word Document and complete the document following the enclosed instructions. Sign with two witnesses who sign in your presence and the presence of each other. Store your signed Will in a safe place.

 

Don't have suitable witnesses? You can make your own Handwritten Will. Which is legally valid in Alberta, Manitoba, New Brunswick, Newfoundland & Labrador, Northwest Territories, Nova Scotia, Nunavut, Ontario, Quebec, Saskatchewan, and the Yukon. They are not recognized in the Provinces of British Columbia and Prince Edward Island.

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To make a legally valid holograph Will you need to handwrite your entire Will, sign it and date it. There are NO WITNESSES. In fact, if you have any witnesses sign your holograph Will it becomes void. To lean more about how to make a holograph Will watch: Write Your Own Will, Right Now! on Youtube. 

 

What about witnesses?

Not just anyone can sign as witness to your Will. Witnesses should NOT be:

1. An Executor named in your Will. The law deems a Will void and invalid if any of the Executors sign as a witness.

2. A spouse or partner of any beneficiary of your Will. The law deems any gift to a beneficiary void if that beneficiary’s spouse or partner signed the Will as witness.

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How much does a Will cost from a law firm?

You can expect a law firm to charge you between $600-$2,500 (CAD) for a Will. You will also be required to attend that law firm's office on two occasions: the first is when giving instructions and the second a week or more later is to sign your Will. ​