Indispensable importance of a properly prepared Will

It is difficult when someone close to you dies, and it can be even more emotionally and administratively draining when that someone dies without a Will. Without a Will in place, neither the deceased nor the survivors have any control over how an estate is distributed. The added uncertainty, paperwork and stress of not having your affairs in order isn’t something you want to be the lasting legacy you leave with the people you love.

Your Will is the cornerstone of your estate planning. Not only is it your last opportunity to provide legal-binding directions as to whowill get what you have accumulated over your life; it allows you to guide when and how your assets will be distributed. Taken together, these elements underscore why a properly prepared Will is so crucial.

Purpose of a Will

A Will serves two primary legal purposes:

1. To provide certainty as to what will happen with the property you own at death.
2. To appoint who will be legally empowered to execute the Will instructions, which is where the term executor originates, though officially it may be representative, administrator, estate trustee or liquidator in your province.

Beyond these legal effects, a Will can provide emotional benefits, not the least of which is the reduction of stress by having an up-to-date inventory and perspective on yourself and your stuff. Many people are eased by having completed a Will, knowing that they have in turn eased how their loved ones will manage the eventual estate.

For many beneficiaries, a Will serves as closure, being the confirmed last wishes of the deceased. There is also the practicality that a well-drafted Will can speed up the commencement of the estate process, smooth the road during administration, and shorten the time to property distribution – all of which help contain the cost of an estate.

Lacking a Will – Intestacy

Without a Will, the provincial rules of intestacy (meaning no valid testament, being a synonym for a Will) apply a formula to distribute your property. Depending on province, that may include married spouses only, or may either expressly include common law spouses or require them to register notice to share in the estate. And while spouse and immediate family are at the front of the distribution queue (continuing outward along bloodlines), there is no chance to adjust prescribed proportions, nor to delay distribution to adults who lack the maturity to handle property. Even more problematic is how to deal with inheritances on behalf of minor beneficiaries, which may require permission of a court and monitoring by a public agency.

Even when one is legally married, intestacy can lead to unintended and uncomfortable results. Depending on the value of your property and how title is registered, your children may have immediate and significant claims in an intestacy alongside your spouse. That would be extra complicated and inconvenient where there are minor children (as already noted, but here now intermingled with spouse rights), and potentially disastrous if there are standing family tensions. (For more on provincial intestacy rules, see our article “Intestacy? For those you love, make a Will”.)

Supporting your children in vulnerable circumstances – Trustees and guardians

Beyond the matter of transferring property from a deceased to a spouse-survivor, those who are parents must consider the unthinkable of what happens if both parents die, whether at once or in short succession.

Transferring property to children can be complicated. It requires careful thought about when and how that will happen, how structured or discretionary it may be, and who is best suited to oversee it if desired. Whether children are minors or young adults, a trustee should be considered for management of assets.

Equally or even more important is that children need a stable family structure, especially during traumatic times. You want them to have an emotionally supportive home, surrounded by extended family, and a social setting that allows them to build fulfilling lives. Your Will is the last word you can offer on naming a guardian, so its contents and the conversations leading up to its execution are fundamental to your role as a parent. A court will ultimately decide guardianship in the child’s best interest, but the expression in your Will is a compelling contributing factor.

“My estate is simple … so do I really need a Will?”

You may feel you don’t own enough to be bothered, but eventually you will (often without noticing), and sometimes rights and claims arise out of an untimely or accidental death. Financial awards for a lost life can be substantial, and rightfully so when they are a proxy for the support and earning capacity of a parent or spouse who is no longer there to contribute personally. Informed Will and estate planning considers these remote contingencies, looking past the things you own to focus on the people you love, particularly those who are financially dependent on you.

And even if you are not a parent or spouse, you are still a child in your parent’s eyes. When a child dies first, it can be crushing to parents, whether that child is under their roof or has already set out into the world. Such a ‘death out of order’ can be emotionally, socially and even physically paralyzing for parents. A minor child can’t do much to prepare for such a tragedy, but an adult child can make a Will to ensure that their estate can be managed as efficiently as possible, allowing their parents to begin dealing with their grief.

Main types of Wills in Canada – Execution formalities

To execute a Will, you must usually have reached age of majority, with some exceptions for those who are married younger or are in the armed forces. Generally, you must have the mental capacity to understand the property you own, the people to whom you have legal obligations and moral connection, and the legal effect of the Will.

It is prudent to hire a lawyer, regulated paralegal or notary to advise upon and draft your Will. This allows you to tap into the expertise of the legal professional to uncover needs and explore options, both within the Will and potentially as complementary actions outside of the Will. The professional will also commonly oversee the Will execution, assuring that all formalities are met and appropriately documented. The executed Will is yours so you can take it with you (but see below regarding notarial Wills in Quebec), or the professional may offer storage in their Will vault.

Formally witnessed Will

This is a written document signed by the testator (the person making the Will) in the presence of two witnesses who in turn sign the Will in the presence of the testator. Witnesses must be at least 18 years old, and cannot be beneficiaries of the Will (or spouse/partners thereof) or otherwise be in a position to potentially benefit from the Will. Most often the document will be type-written (other than the testator and witness signatures), but it can be partially or fully handwritten. Where a type-written document has handwritten additions, these should be initialed by the testator and witnesses, so that is clear the notations were in existence at time of execution, and not added later.

Notarial Will

In Quebec, a Will prepared by a notary (a legal professional qualified in Quebec civil law) is known as a notarial Will. The notary often serves as the only witness, with the executed Will being kept at the notary’s office while concurrently being recorded in the Quebec provincial registry. These features/processes provide security for the Will, allowing for quick access and administration at the critical moment, which saves money, effort and time.

Notaries in other provinces may be qualified to prepare Wills. Consult your province’s governing body for notaries.

Holograph Will

A testamentary document entirely in a person’s own handwriting is a holograph Will. Provinces vary on what is required to be recognized as a holograph Will (and some don’t accept them at all), with most requiring that it be signed. Dating and witnessing are not mandatory, but are desirable to support validation if matters are contentious.

Pre-typed documents with handwriting do not suffice (assuming witnessing requirements have not been met), though handwritten portions alone have been accepted by courts in some instances.

Digital Wills and execution

Historically, Wills could only be in-writing and executed in-person. This is an evolving area of law, accelerated in some places with the lockdown and social distancing hurdles we experienced during the Covid-19 pandemic in the early 2020s. Consult a lawyer in your province about the latest developments where you live.

Do-it-yourself kit

Except for Quebec notarial Wills, one does not have to use a legal professional to prepare and execute a Will. Indeed, DIY Will kits have existed for decades, progressing from nominal cost stationers’ fill-in-the-blank forms to current online services with sophisticated presentation and robust guidance. It is an individual’s prerogative whether such a kit/service adequately addresses the individual’s legal needs.