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If you are new to the estate planning scene, you very likely have never seen a Will and don’t know what one actually looks like. Don’t worry, something like 80% of Canadians have never made a Will, and I would put money on the fact that a great percentage of those have never seen an actual Will. So you are likely in a majority category of Canadians.
If you have never seen a Will before, then this blog is for you.
A Will is typically a couple, if not a dozen or more, pages long. It should be printed (or handwritten) on white paper. That paper need not be fancy linen nor cardstock. We know the courts across Canada do not like to see Wills printed on coloured paper.
The law requires that a Will be signed and dated by the maker (also known as the Testator). If it is handwritten by the Testator, then there are no additional signing requirements. But if the Will is typed up, then it must also be signed in the presence of two witnesses who must sign in the presence of the Testator and each other.
A Will should state right off the bat that it is in fact a Will and should identify the Testator as the maker of the Will. For example: “This is the last Will and Testament of me, Jane Smith, of the City of Ottawa, in the Province of Ontario”.
A Will should also state that the Testator revokes any and all previous Wills or similar documents created by the Testator. Ie. "I revoke all former Wills and Codicils by me and declare this to be my Last Will and Testament". The reason for this revocation is that you only ever want one Will circulating. If there is more than one Will, then that increases the chances of legal issues and fighting amongst beneficiaries when it comes to conflicting gifts in various Wills.
A Will then goes on to appoint an Executor and alternate Executors. Ie. "I hereby appoint so-and-so to be my Executor", "If so-and-so is not able to act as my Executor, then I appoint such-and-such to be my Executor".
Next a Will names a guardian (if you are appointing one) and proceeds to list the gifts to your beneficiaries. "I give, devise and bequeath the rest and residue of my estate to my spouse, John Smith".
The majority of a Will consists of the legal powers needed to allow the Executor to carry out the job of administering your estate. Such powers include the power to manage your property, assets, land, investments, make funeral arrangements, deal with digital assets, make income tax elections, pay legally enforceable debts and pay taxes.
The final part/last page of your Will contains the date of signing and the signatures of the Testator and the witnesses.
What may be of a surprise to those who haven’t seen a Will before is that many times the actual names of the Testator’s children and grandchildren aren’t specified (if the Testator is gifting to his/her children or grandchildren equally). Instead the Will refers to the Testator’s “children” and “grandchildren”. Ie. "Should my spouse, John Smith, predecease or fail to survive me, I give, devise and bequeath the rest and residue of my estate equally to my children".
Along those lines, the details of each asset owned by the Testator is not directly specified in the Will. For instance: bank account numbers, property addresses, etc. are not mentioned in a Will, unless they are gifted as “specific gifts”. More on that in a later blog.
A typical Will is typed in ink (or handwritten in pen) and is signed with a pen.
A decent length of a short Will is about 5 pages long. The signature page can take up a whopping three quarters of/or the entire last page. As mentioned, the vast majority of those remaining pages would mostly consist of the various legal powers given to your Executor.
Of course, a Will can be several dozen pages long. This would be the case for complex estates with assets that are intertwined with corporations and trusts or in scenarios where the Testator wants to give to a large number of beneficiaries.
Language used in a Will should be straight forward and simple to understand. There should be minimal legal jargon as the Executor is the one who will interpret the directions and gifts in the Will. Contrary to what people think, the law moves very slowly and it can take years before a court will look at a matter to issue an order as to the “proper” interpretation of what is written in a Will, so its best to ensure the Will is written in plain language that everyone can easily interpret.
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