Ins and outs for a Will article

Ins and Outs of Legal Wills in Canada

What are the ins and outs when it comes to making Wills? When contemplating the future, one question that often arises is how to ensure that our assets, possessions, and personal wishes are taken care of after we are gone. This concern is where legal wills come into play. A legal will is a powerful instrument that enables individuals to dictate the distribution of their estate, designate guardians for their minor children, and specify their final wishes. In Canada, as in many other countries, the concept of a legal will is deeply ingrained in the legal system and plays a critical role in estate planning. In this article, we will delve into the intricacies of legal wills in Canada, exploring their purpose, types, requirements, and other essential considerations. What should you know about the ins and outs of creating a Will? Click on the links to find out.

Purpose of a Legal Will




Minimizing Conflicts

Types of Wills

Formal Will

Holograph Will

Nuncupative Will

Requirements for Creating a Valid Legal Will




In Writing




Updating your Will

Challenges and Pitfalls




Estate Taxes

At its core, a legal will is a written document that outlines how a person’s assets will be distributed upon their death. It serves as a roadmap for executors and probate courts, ensuring that the deceased’s intentions are fulfilled as faithfully as possible. The ins and outs of understanding how Wills are drafted starts with understanding the primary objectives of creating a legal will. The objectives are as follows:

1. Asset Distribution:

A legal will empowers individuals to decide who will inherit their property, money, investments, and other assets. Without a will, the estate would be distributed based on provincial laws, which may not align with the deceased’s desires.

2. Guardianship of Minor Children:

For parents with minor children, a will provides the opportunity to designate guardians who will take care of their children in the event of their demise. This choice can be crucial for ensuring the well-being and future of the children.

3. Funeral and Burial Instructions:

A will allows individuals to specify their preferences regarding funeral arrangements, burial or cremation, and other funeral-related decisions. This can alleviate burdens for grieving family members and help ensure that the deceased’s final wishes are respected.

4. Minimizing Family Conflicts:

A well-drafted will can minimize disputes and conflicts among family members over the distribution of assets. It provides a clear and legally binding framework for asset allocation, reducing the likelihood of contention.

Types of Legal Wills in Canada

In Canada, there are several types of legal wills that individuals can choose from, depending on their unique circumstances and preferences:

1. Formal Will:

A formal will, also known as a “typewritten will,” is the most common type of will in Canada. It is typically prepared with the assistance of a lawyer and signed by the testator (the person making the will) in the presence of two witnesses. These witnesses must also sign the will to validate it.

2. Holograph Will:

A holograph will is a handwritten will, entirely written and signed by the testator without the involvement of witnesses. In some provinces, holograph wills are recognized as valid, provided that they meet specific requirements, such as being entirely in the testator’s handwriting and dated.

3. Nuncupative Will:

A nuncupative will, also known as an “oral will” or “deathbed will,” is a verbal declaration of the testator’s wishes made before witnesses. It is considered valid in some provinces under specific circumstances, usually when the testator is in imminent danger of death and unable to create a formal will.

It is important to note that not all provinces in Canada recognize all types of wills, and the laws regarding their validity can vary. It is advisable to seek legal advice to determine the most appropriate type of will for individual circumstances.

Requirements for Creating a Valid Legal Will:

To ensure a legal will’s validity in Canada, certain requirements must be met:

1. Age of Majority:

The testator must be of the age of majority, which varies by province or territory. In most provinces, the age of majority is 18 years, except for British Columbia and New Brunswick, where it is 19 years.

2. Testamentary Capacity:

The testator must have testamentary capacity, meaning they must be of sound mind and understand the nature and consequences of making a will. This capacity ensures that the testator is not under undue influence or coercion while making the will.

3. Intentionality:

The document must be intended to be a will, explicitly outlining the testator’s intentions to distribute their assets after death.

4. In Writing:

Formal and holograph wills must be in writing to be considered legally valid. Oral wills are generally not recognized in most provinces.

5. Signature and Witnesses:

Formal wills require the testator’s signature in the presence of two witnesses who must also sign the will. Holograph wills, depending on the province, may or may not require witnesses.

6. Revocation and Alteration:

A legal will can be revoked or altered by the testator at any time while they are alive and have the required testamentary capacity. Changes can be made by creating a new will or through a codicil, which is a legal document used to modify or supplement an existing will.

Probate Process and Estate Administration

When a person passes away, their will generally goes through a legal process called probate. Probate involves the court’s validation of the will and the appointment of an executor to manage the estate administration. The executor’s role is to gather the deceased’s assets, pay off debts and taxes, and distribute the remaining assets as specified in the will. The probate process ensures that the will is legally valid, confirms the executor’s authority, and protects the rights of beneficiaries.

It is essential to note that not all assets need to go through probate. Certain assets, such as jointly owned property with rights of survivorship and assets held in trusts or designated beneficiaries, pass directly to the designated individual without being subject to the probate process.

The Importance of Regularly Updating Your Will

Creating a legal will is not a one-time task. Life is constantly changing, and events such as marriage, divorce, birth, or the acquisition of significant assets can significantly impact the relevance and effectiveness of an existing will. As a result, it is crucial to review and update your will periodically or whenever a significant life event occurs. Understanding the ins and outs of legal Wills requires regularly updating the document, to ensure that it remains aligned with your current wishes and circumstances. Take the time to recognize the ins and outs of creating Wills.

Challenges and Potential Pitfalls

While legal wills play a critical role in estate planning, they are not without their challenges and potential pitfalls. Some of the common issues individuals may encounter include:

1. Intestacy:

If a person passes away without a valid will, they are said to have died intestate. In such cases, provincial laws dictate the distribution of assets, which may not align with the deceased’s intentions.

2. Family Conflicts:

Even with a valid will, family conflicts can arise, especially if beneficiaries feel slighted or disagree with the distribution of assets. Proper communication and transparency with family members can help mitigate potential conflicts.

3. Legal Complexity:

The laws governing wills can be complex and vary by province. It is crucial to seek professional legal advice to ensure that your will complies with the applicable laws and is appropriately drafted.

4. Estate Taxes:

Depending on the value of the estate and applicable tax laws, there may be estate taxes to consider. Proper estate planning can help minimize the tax burden on beneficiaries.

This article has helped you with the ins and outs of creating Wills. Legal wills serve as powerful tools for individuals to safeguard their legacy and ensure that their final wishes are respected. By thoughtfully considering the distribution of assets, guardianship of minor children, and funeral instructions, individuals can provide clarity and peace of mind to their loved ones during challenging times. Although creating a will may require some effort, the benefits of a well-structured will far outweigh the challenges. Through regular review and updates, individuals can keep their wills relevant and ensure that their legacy endures for generations to come.