Drafting Wills is technical and requires specialized knowledge, not only about the common law and legislation directly addressing Wills, but also property law, family law, tax law, and trusts. Every once in a while we see a DIY Will from a Wills kit, online DIY Will service, or one that is entirely handwritten by the individual.
Obviously I think there is value in having an experienced lawyer prepare your Will, otherwise we wouldn’t offer it as a service, but if you are going to do your own Will here are the most common mistakes you should avoid:
- The Will isn’t dated. Making a new Will cancels any old Wills and the new Will governs. If you have more than one Will that exists, the date is very important to establish which Will is valid. If the Will is undated, your Executor will need to find other evidence to support when it was made and this opens the doors for potential challenges to the Will.
- The Will isn’t signed or witnessed properly. If the Will isn’t signed, it isn’t valid. There are also rules about how a Will must be witnessed. The Will should be signed by the person making the Will in front of two witnesses, and those two witnesses must sign the Will in front of the person making the Will and in front of each other. The person making the Will and both witnesses should have signed the last page and initialed all other pages. You should be able to identify who the witnesses are. The Will should not be witnessed by certain people. For example, the Will should not be witnessed by anyone who is a beneficiary of the Will, the spouse of a beneficiary, anyone who signed the Will for the person making the Will, the spouse of anyone who signed the Will for the person making the Will, anyone who translated the Will for purposes of signing, or the spouse of anyone who translated the Will for purposes of signing. If a prohibited person witnessed the signing of the Will, the Will might still be valid but it could mean that the witness may not receive anything under the Will. There should also be a completed Affidavit of Witness attached to the Will. If not, you may need to arrange to have an Affidavit of Witness prepared and sworn, and then attach it to the Will.
- The Will is partially typed and partially handwritten. A person can handwrite a Will and it can be valid without witnesses as long as it is completely in the person’s own handwriting. When people print Will forms from the internet they often add handwritten wording; if you do that then the formal witnessing requirements do apply.
- The Will tries to do something that isn’t allowed. Contrary to popular belief, you can’t put anything you want in a Will. For example, if you leave your spouse nothing and give everything to your mistress, your spouse would have a valid claim against your estate for maintenance. Certain conditional gifts may be void for public policy; for example, leaving a gift to someone on the condition that they marry someone of a certain religion Will typically be void.
- The person married after making the Will. Before the law changed in February 1, 2012, marriage would automatically cancel an existing Will. So, if you got married before February 1, 2012, and have a Will that is dated earlier than the marriage, the Will would be void.
- Failing to address different scenarios. Your Will needs to address various situations and strange sequences of death. If you your estate to your children but one of them dies before you, what happens to their share? What if they have children (your grandchildren)? What if you and all of your children die at the same time in a plane crash or car accident? What if your chosen guardian decides not to take your children? These are uncomfortable situations for most people to contemplate which is why they are often missed in DIY Wills.
- Not understanding what assets your Will distributes. A large part the wealth you leave your family might be in the form of life insurance or registered accounts (TFSAs, RRSPs). These usually have named beneficiaries and, unless you have specifically named your estate, those funds will pass outside of your Will and won’t be affected by what you write in your Will.
- Only doing a Will, nothing more. The Will takes effect if you pass away but has no effect if you lose capacity to make decisions for yourself (eg, you are in a coma, you have a brain injury, you get dementia, etc.) In that case you would need an Enduring Power of Attorney to allow someone to make property and financial decisions on your behalf and a Personal Directive to allow someone to make personal and medical decisions on your behalf. Without those documents, your family may need to go through the time and expense, and possible conflict, of getting a Trusteeship order and a Guardianship order from the court.
If you need help preparing your Wills, Enduring Power of Attorney and Personal Directive, contact us and we would be happy to help. I promise we have made the process as quick and painless as possible and we want to guide you through it!