Accepting that a Will is a necessary component of a well-considered estate plan, what steps should or must be taken in order to assure that the Will is validly executed?
Let’s start with the person making the Will – Who can do that?
- These comments are generally applicable in the common law provinces, but Quebec may be different as it is governed by Civil Code.
- The person who makes or executes the Will is called the testator, and that person must understand …
- the nature and effect of a will
- the nature and extent of his or her property
- what is being given under the will, and the relative entitlements of beneficiaries
- the persons who may be expected to be beneficiaries under the will, and
- the potential claims of those who may be excluded from the will.
Assuming we then have a capable testator, what is the most common form of Will?
- An “attested Will” is a witnessed Will, and therefore it has that independent evidence to rely upon
- The testator must sign or execute it at its end
- There must be two or more witnesses present when the testator executes, and
- The witnesses must then sign the document in the presence of the testator and one another
If that’s the most common form, is there then an uncommon form?
- Most jurisdictions will allow a “holograph” Will which is entirely in the person’s own handwriting, and without any particular formalities.
- In an emergency this may be the only alternative, but as soon as there is time then an “attested Will” should be prepared.
So if I want to be careful and have an “attested Will”, can anyone be a witness?
- Generally a witness should not be a beneficiary, executor or trustee, or spouse of any of those people — or for that matter, it should not be anyone who might derive an actual or perceived benefit out of the Will, or otherwise from the testator
- Using independent witnesses helps avert claims of duress, undue influence, or other concerns about the testator’s state of mind at the time of the execution
- The risk is that some or all of the Will may be rendered ineffective
- If the Will is executed under a lawyer’s supervision, these concerns and risks are far less likely to come about