There are any number of clichés applicable to the critical importance of a Will. "A will," wrote law professor Karen Sneddon of the Mercer School of Law in her 2013 article published in the American Elder Law Journal, "is one of the most personal documents an individual ever executes."

Another is the anonymous and short saying known to many experts on the law of wills: "A man who dies without a will has lawyers for his heirs." The explanation for this is that where there is no will to dictate specifically where the property of the decedent should go, and there is a small fortune to distribute, every Tom Dick and Harry in the lineage of the decedent will often come out of the woodwork and claim an interest in the estate.

Caveat Emptor

You would think that with all the self-help books and pamphlets out there, a lawyer is no longer needed in the preparation of a will.

Wrong.

The requirements for a valid will varies from province to province.

Even within a given province, how probate works often affects the content or form of a will, what the difference is between executors and administrators, what a executor is allowed to do and as of when they can do it, etc.

It is only with a comprehensive picture of the law governing wills that you can be assured that your will is going to do what you want it to do.

Unfortunately, self-help kits do not provide that kind of information.

duhaime willIf you have an estate worth thousands of dollars, as do most Canadians, just remember that you will be spending only a fraction of that for proper legal advice and the peace of mind that goes with knowing your will was professionally prepared and will be problem-free after your death.

As Lord St. Leonards wrote:

"To put off making your Will until the hand of death is upon you evinces either cowardice or a shameful neglect of your temporal concerns."

Voila, le Will

A will is a written and signed statement, made by an individual, which provides for the disposition of their property when they die.

Many people put other things in their will as well, such as how to dispose of their body or where and how to conduct the memorial service.

The bread and butter will in Canada (the one most commonly used), also known as the English-law will because of its origin, is the conventional will. Every province recognizes this will and it requires the following formalities:

  • In writing (i.e., verbal wills are unacceptable);
  • The testator (person who signs the will) must have legal capacity. Minors can not make valid wills nor can the mentally-incapable;
  • Signed by the testator at the end of the will;
  • The testator must sign or acknowledge his or her signature in front of at least two witnesses, who attest to the fact that they witnessed the signing of the will or the testator acknowledged his or her signature in their presence; and
  • The witnesses must be of the age of majority and cannot be a beneficiary named in the will or spouse of the deceased.

Although not absolutely required, it is preferable to write the date on the document.

Also, in Quebec, each page must be initialed by the testator and the witnesses.

There are also other kinds of wills.

Holograph Will

The holograph will must be completely handwritten by the testator.

Most, but not all provinces recognize these wills. Of those that do, some will accept the holograph will even if unsigned; provided only that it is in the testator's handwriting. Other provinces require a signature.

A typewritten will signed by the testator is not a holograph will because it is not fully handwritten by the testator (nor, incidentally, is it a conventional will because it fails the 2 witnesses requirement).

It should be noted that a few legal decisions exist which have managed to stretch the requirements of holograph wills by ratifying the handwritten part of a will form to stand as a holograph will.

Holograph wills are not recommended except in cases of emergency. Once a conventional will is in place, some courts have suggested that the extent to which a holograph will can modify the terms of a previous conventional will is limited.

To hi-light the usefulness of holograph wills, consider the case of Cecil Harris, a farmer who was pinned under his tractor for nine hours while farming his Saskatchewan farm on June 8, 1948 (Harris' saga is detailed in LawMazing 6).

The court considered the dying man's words etched on an overturned tractor fender, as a valid holograph will.

For another unusual example of a holograph will, but which demonstrates the flexibility, see The Sodoku Will, as detailed in LawMazing 1.

International Will

In 1973, an international convention was completed which requires all countries adopting the convention to accept wills which meet the formalities set out in the convention. Called the Convention Providing a Uniform Law on the Form of an International Will, these wills must meet a number of formalities before they can be accepted as valid.

To start with, the province of last residence must have adopted the Convention.

Then, there are conditions related to the writing of the will, witnesses and administrative authorization.

Not all provinces accept this type of will.

Serviceman or Privileged Will

A special kind of will exists for members of the armed forces or mariners. The privileged will is the same as a conventional will except that witnesses are not required.

In fact, these wills do not even have to be signed by the testator; they can be signed by another person in the testator's presence (although some provinces require an additional witness in the case of privileged wills signed by third parties on the testator's behalf).

Minors, provided they were employed as mariners or in the armed forces at the time, can write a valid serviceman's will.

These wills continue to be valid even after the voyage or armed forces employment is over.

Quebec Notary Will

In Quebec, notaries are given special will-making powers in the civil code of Quebec.

These wills are heavy on formalities. They must be made by a notary.

Concluding Remarks

Some additional rules are common to all wills. For example, the document must clearly show an intent to distribute property upon death; it must be an unequivocal and clear expression of the distribution of the testator's property upon their death.

The courts have had problems with this rule. Hand-written letters to friends or family relatives sometimes contain casual mention of the signatory's property and what should happen to it upon his or her death.

Also, if a document which purports to be a will is conditional on an event which occurs before the testator's death, the document will not be considered a will.

Finally, note that a will is always revocable even if it specifically uses the word irrevocable.

REFERENCES AND FURTHER READING