How to make a valid Last Will & Testament
Everyone should have a valid Will.
We all have people (or pets!) in our lives that we care about, and wishes for how we would like our financial and funeral affairs to be handled after we pass.
A Last Will & Testament (“Will”) is the most important tool available to us for seeing those wishes carried out, and our loved ones properly provided for.
If you pass away without having a valid Will, you will be considered to have died “intestate”. In that case, a set of generic rules associated with the legal jurisdiction you live in will govern how your estate is administered and your assets distributed.
In Ontario, intestacy laws are governed by Part II of the Succession Law Reform Act. In broad terms, passing away intestate in Ontario means that you will fall under one of seven “default” estate distribution scenarios, depending on whether you have a spouse, children, or both, and also depending on the value of your estate.
These default intestacy scenarios lack the nuance of a Will created to meet your specific testamentary wishes. Passing away intestate may result in your estate being administered differently than how you would actually want it to be (including who receives the proceeds from your estate, including specific property and belongings). This could lead to family conflict over perceived unfairness, and/or could fail to adequately provide for the most vulnerable or deserving members of your family, among other negative consequences.
For example, if you are estranged from your spouse at the time of your passing, and would prefer that some of all of your estate passes to your children, you will certainly want to have a valid Will in place. In Ontario, if you pass without a valid Will, and your estate is valued at less than $350,000, your spouse would be entitled by law to the entirety of your estate’s property under the Province’s intestacy rules.
Having a valid Will also decreases the administrative work required to conclude your affairs, and may reduce the costs, legal and otherwise, required to administer your estate.
Suffice to say, there are many advantages to having a valid Will at the time of your passing.
So, how does one create a valid Will?
What makes a valid Will?
Historically, the courts in Canada have been very generous with their interpretation of what constitutes a valid Will.
For instance, take the incredible story of the Saskatchewan farmer who etched his dying wishes into the fender of a tractor with his pocket knife as he lay pinned and mortally wounded underneath it:
“In case I die in this mess I leave all to the wife. Cecil Geo Harris”
Those sixteen hand-carved words were found by the court to constitute a valid, holographic (meaning handwritten) Will. So, we can logically infer that something along the lines of the above Will might be considered the “bare minimum” for a valid Will!
Of course, some of us will have slightly more complicated personal affairs and/or testamentary wishes.
Under more ideal circumstances, when we create our Will, our testamentary wishes should be as precise and clearly set out as is possible. In addition, the circumstances surrounding the signing of the Will should be well-documented, to avoid any allegations of impropriety or invalidity (for example, coercion or lack of mental capacity).
The signing of the Will should also be witnessed by at least two individuals who are not beneficiaries under the Will.
What specifically should you include in your Will?
If you have made any prior Wills, you should include a statement revoking any prior Wills or testamentary directives you have made.
You should also include a statement appointing an estate trustee or executor for your estate, and, ideally, an alternative estate trustee, in case your primary trustee is unable to act for some reason. An estate trustee is the person who is tasked with carrying out your specific wishes and administering your estate.
You should also include a statement authorizing your estate trustee to pay any just debts owing by your estate (for instance, taxes, mortgages, car loans, etc.) and to arrange for the payment of your funeral expenses out of your estate funds.
You should then describe any specific bequests from your estate you would like to make to a named beneficiary, and who is entitled to receive the remaining balance (called the Residue) of your estate, after payment of just debts and any specific bequests are accounted for.
If you have any dependents (for example, minor children) you should appoint a guardian for them, and authorize your estate trustee to ensure they are adequately provided for from your estate’s funds through the creation of a Testamentary Trust.
It is also prudent to authorize your estate trustee to use funds from the estate to hire any professional advisors they may need in order to properly administer your estate according to your wishes (for example, accountants, lawyers, etc.).
If you have specific wishes for your funeral / burial, you should list this in your Will as well.
What are the benefits of having a Lawyer draft my Will?
As we saw above, even a hand-carved sixteen word Will might be sufficient to carry out your testamentary wishes, provided they are simple enough! Many people will be capable of creating their own Wills. However, problems may arise when people, seeking to find a good sample Will online to work off of, use language and legal wording from a Will from another legal jurisdiction, which may be inapplicable to Ontario estate administration laws. Moreover, non-lawyer may misinterpret the meaning of certain legal language used in the Will they are adapting for their own use, which can create unintended and undesirable consequences down the road when their estate is administered differently than they thought they were directing.
A non-lawyer who drafts their own Will may also overlook or omit important sections, for example, the payment of debts from estate funds, payment of funeral expenses, the creation of a Testamentary Trust and appointment of a Trustee for minor dependents, appointment of an alternative estate trustee, specifying burial arrangements, among many other items.
Another important issue comes from the fact that Wills can be challenged by disgruntled beneficiaries or other family members of the deceased who feel they have been unfairly “short-changed” under the Will, or have been disinherited in the Will entirely. In these circumstances, a Will drafted by a lawyer will be far more difficult to challenge and is more likely to stand up in Court.
A Will can be challenged for multiple reasons, including, but not limited to, that the Will is a forgery, that the Will was created under duress, or that the person creating the Will did not have sufficient testamentary (i.e. mental) capacity at the time of signing the Will.
When a lawyer helps you create your Will, they will be sure to include appropriate language when a family member is specifically omitted from a Will, or receives a lesser share of estate proceeds, will carefully document and keep notes as to your mental capacity and lack of duress at the time of signing, and will ensure that the signing of the Will is properly witnessed, including completion of an Affidavit of Execution by one of the Witnesses.
Legal Disclaimer: This blog post is for general legal information purposes only, and is not intended to be legal advice. This blog post should not be relied upon as legal advice. It is recommended that you contact a lawyer to discuss your specific situation and receive legal advice regarding any specific issues you may have.
