Most Canadians know they should have a will, but many don’t. Some people want to avoid the topic altogether, while others hesitate because they feel confused about how wills work and what they do.
A Last Will and Testament is one of the most important documents you’ll ever make. With the right knowledge and legal advice, you can get a will in place that protects you, your assets, and your loved ones. A well-drafted will also goes a long way toward reducing the likelihood of disputes among surviving family members after your death.
Estate planning—including making a will—does not have to be scary. The wills and estates lawyers at Onyx Law Group have the skills and expertise to guide you through the process and put your mind at ease. Contact our law firm today for a free consultation.
Today’s blog post is intended to demystify the will-making process. We want to help you get a better understanding of how wills work and why it is so important to have a legally binding will.
What Is a Will?
A will is a legal document that serves as a roadmap after your death. It sets out your instructions for what you want to be done with your property and money after you pass away and who you want to benefit from your estate. If you have minor children or disabled loved ones, your will can provide your instructions to ensure they receive proper care and financial support. Your will can also be used to express other final wishes, such as your burial wishes or funeral wishes.
A will is usually one part of a good plan, alongside other important estate planning documents such as a Power of Attorney and Representation Agreement. A Power of Attorney allows you to appoint a person to manage your financial affairs and property if you want assistance or become incapacitated. A Representation Agreement (sometimes called a “living will”) allows you to appoint a person to make personal care decisions on your behalf if you become incapable and also provides you with the opportunity to express your end-of-life wishes (e.g., regarding medical care and medical interventions).
Key Components of a Will
Here are some of the key components that are addressed in wills:
- Beneficiaries and distribution of assets. You get to decide what happens to your entire estate, naming who inherits, what each named beneficiary inherits, and when beneficiaries receive their inheritance. For example, you can use your will to set up a trust so that your residual estate is held on behalf of your minor children until they reach a certain age. If you don’t have a valid will in place when you die, BC law determines who inherits from your estate, and your minor children will inherit at age 19.
- Naming the primary executor or executors of your choosing. Your executor is your personal representative after your death. Also known as an “estate trustee” your executor is responsible for carrying out the will’s instructions, settling your affairs, and managing trusts created in your will. If you die without a will, one of your family members will have to apply to court to be appointed as your estate administrator.
- Guardianship appointment. You can name the person or people you want to care for your children should you die while they are under the age of majority—especially important if you are a single parent or your children’s other parent dies before you.
- Specific gifts. You can use your will to make specific bequests (e.g., a certain percent of your estate to your favourite charity, family heirlooms, or other valuable possessions to a specific family member).
There are other components and special considerations for wills, depending on your unique situation. If you are part of a blended family, you are a business owner, own assets or property in Canadian provinces other than BC or elsewhere in the world, or want to deal with digital assets and online accounts, your best bet is to consult with an estate planning lawyer.
Legal Requirements for a Will in Canada
Your will must meet certain formal requirements to be legally binding. Section 37(1) of the Wills, Estates and Succession Act (“WESA”) states that a legal last will must be:
- in writing,
- signed at its end by the will-maker in the presence of two witnesses who are present at the same time, and
- the witnesses sign in the presence of the will-maker.
A last will that does not comply with those requirements is not enforceable.
Moreover, you must be 16 years of age or older to make a will. That means minors (those who are under the age of 19) can make a will as long as the people who witness the signing of the will are over the age of majority (19+). Furthermore, you must also be of sound mind to make your own will, which means you must have a certain level of mental capacity, known as “testamentary capacity.” The issue of capacity can be complex. A person may be mentally capable of making a valid British Columbia will, even if they are experiencing cognitive deterioration or isolated memory deficits.
Types of Wills
Now that you know the legal requirements for making a will, let’s look at the types of wills that can be made. First up are holographic wills. A holographic will is a will written in a person’s own handwriting. Strictly speaking, a holographic will is not valid under BC estate law, but it may be possible for surviving family members to bring a court application asking the court to give effect to a handwritten will after your death. There are no guarantees that the court will find a document in your own handwriting to be valid as a will, and it will cost your family members extra time and legal fees to get that declaration.
Another type of will is one prepared using a template from an online service or will kit. A DIY will or one made using online services is typically inexpensive and may be suitable for a person with a very simple estate. The major problem with will kits, however, is that they are not customized to you. A one-size-fits-all DIY will is unlikely to meet your needs, especially if you have a complex estate, and it may not comply with BC laws.
The recommended type is a formal will prepared with the assistance of a legal professional. Formal wills are sometimes called “notarial wills” in other provinces, but a notarial will is not used in BC, and wills don’t need to be notarized in BC. A formal will is the best way to ensure that you leave a valid, legally binding will that actually does what you want it to do. Estate lawyers have specialized knowledge of estate law, so they can customize your will to achieve your estate planning goals.
Skilled estate lawyers can also advise you on ways to minimize taxes and avoid the probate process (e.g., by transferring ownership of property during your lifetime, setting up joint bank accounts and using joint tenancy to hold real estate, aligning beneficiary designations with your overall estate plan, creating inter vivos trusts). Your lawyer can also advise you on pitfalls and help you avoid common mistakes.
Steps to Create a Will in Canada
The best first step is to assess your assets and liabilities. Make a list of all the property you own and how you own it. For example, if you own your home as a joint tenant with your spouse, you can’t gift ownership of the home to someone in your will. The same is true for joint bank accounts, which pass outside of your estate to the surviving joint owner.
Next, you should think about who you want to inherit your residual estate (the residual estate is what is left after your debts, funeral expenses, estate taxes, etc., have been paid from your estate). How much do you want each named beneficiary to inherit? At what age? What if a named beneficiary dies before you? Have you made adequate provision for beneficiaries and taken steps to document your wishes to reduce the likelihood of estate disputes after your death?
The next step is to choose your executor and guardians for minor children. Once the key information has been gathered and choices have been made with respect to executor, guardian, bequests, and beneficiaries, your will can be drafted. It’s highly recommended that an estate lawyer create your will and oversee the signing and witnessing of your will.
Will Disputes and Wills Variation Claims
We touched on what happens if you die without a valid will. Now let’s talk about another significant concern for BC will-makers: a wills variation claim. After your death, your spouse and children have the legal right to ask the court to vary your will if you disinherit them or fail to make adequate provision for them in your will. Your child may also be able to contest your will if it treats them unjustly or unfairly compared with their siblings.
“Spouse” here means a legally married spouse or a common-law partner. “Child” means biological child; it includes adopted children and adult children, but does not include stepchildren. Your spouse or child can apply to vary your will under WESA section 60. If they don’t bring a wills variation claim within six months of the day the will is probated, they lose the right to bring a claim.
What Happens When a Wills Variation Claim Succeeds?
When a wills variation claim is successful, the court has the power to vary an otherwise valid will to impose what it sees as an adequate, just, and equitable distribution of estate assets.
There are steps you can take to avoid wills variation claims and other types of will disputes, including working with a lawyer so you understand your legal and moral obligations, speaking with your family about your wishes and plans, and carefully documenting your wishes and reasons for your decisions.
Can You Update or Revoke a Will?
You should review your will every few years to ensure it continues to reflect your wishes, and update it by creating a new will or a Codicil to your existing will as needed. You should also update your will after major life events such as marriage, divorce, birth of children/grandchildren, or death of named beneficiaries or your executor.
If you want to revoke your will, there are a number of ways to do so. For example, you can physically destroy your existing will, make a written declaration revoking all or part of your will, or create a new will that accords with the formal requirements discussed above. It’s highly recommended that you consult with an estate lawyer to ensure the revocation or updates are done properly. Improper changes or ineffective revocations often lead to confusion and estate disputes.
What Is the Probate Process in Canada?
In Canada, probate is the legal process where a court validates a deceased person’s will and grants authority to the executor named in the will to administer the estate. This involves identifying assets, paying debts and taxes, and distributing remaining assets to beneficiaries according to the terms of the will or provincial laws if there is no will.
Your personal representative (estate trustee or estate administrator) has a lot of responsibilities after your death. One of the key responsibilities is determining whether probate is necessary and applying to the Supreme Court of British Columbia. If so, there are steps you can take in the estate planning process to reduce or eliminate the need for probate.
Types of Lawyers Who Help with Wills and Wills Variation Claims
There are different types of lawyers who help with estate issues, depending on your needs and their area of expertise:
- Estate planning lawyers advise clients on incapacity planning and succession planning, including preparation of wills, trusts, a power of attorney to manage money, property, business, taxes, etc., on a person’s behalf, and a Representation Agreement for health care decisions.
- Probate lawyers assist clients in administering estates and trusts, guiding them through the complicated probate process and addressing probate matters that can arise in even seemingly simple estates.
- Estate litigation lawyers represent clients involved in legal disputes after a person’s death. Litigation may be necessary for many reasons, including questions about the validity of the will, allegations of fraud or misfeasance, inheritance theft, and allegations of unjust exclusion from an estate (disinheritance).
Have More Questions About Wills?
Having a will is important because it allows you to specify how your assets are distributed after you die and ensures your wishes are legally recognized, avoiding potential conflicts among your loved ones.
We welcome you to reach out to our estate planning lawyers in Vancouver today to discuss your wishes and prepare a will that achieves your goals. We have the knowledge and experience to streamline the process, help you avoid common mistakes, and put your mind at ease.