Wills can be complicated, especially because the laws surrounding making a will vary from province to province. When you want to prepare a will, it is important to speak with a lawyer in the province where you live. The following information is not legal advice and does not take the place of consulting a lawyer.
It’s a good idea for everyone to have a will. Even if you don’t have a lot of possessions or money, a will can help to distribute whatever there is and to make your wishes known. Making a will can be straightforward or complex, depending on the nature of your estate and what you want to do with it. There are laws in every province that deal with the nuts and bolts of making a will – how many witnesses you need, what provisions have to be included, etc. For this reason, it’s a good idea to speak with a lawyer when you prepare your will, and also to make sure you’re updating your will every time a major life event happens, such as moving provinces, having a child, getting divorced, etc. Consulting with a lawyer can help you to think of all the things you should be including in your will, and how you can distribute your money and possessions in the way you intend.
NOT GETTING AROUND TO MAKING ONE
In the event that you die without a will, there are certain laws that kick in to tell us how to distribute your estate. These laws basically look for a spouse and children, and absent these they go down a line of people such as parents, siblings, aunts, uncles, etc. If you die without a will, your estate could end up in the hands of a distant cousin you never intended to inherit your money, so it is a good idea to prepare a will.
HOW TO MAKE A WILL
Across Canada, in most cases you’ll need witnesses when you prepare your will. These will have to be people who aren’t going to be beneficiaries under the will (or the spouse of a beneficiary), and they will generally have to be present while you sign your will. You’ll also need to choose an executor, which is basically your representative in putting your will into action. Once your will is prepared, you need to make sure that your loved ones know where it is. Often people will leave a copy with their lawyer and a copy in their safety deposit box (if they have one) or fire-proof box in their home. Some people even leave their will in the freezer because it is well insulated and could potentially survive in the event of a fire. Wherever you choose to put your will, make sure you have told your family.
THE EXECUTOR’S ROLE
Being an executor is a fairly heavy role, especially for large and complex estates, and involves things like having assets valued, paying the estate’s taxes and paying out distributions under the will. It’s a good idea to speak to the person you want to name as executor to make sure they’re up for the job, and to name an alternate in the event that your first executor can’t do it or dies before you.
WHO SHOULD YOU INCLUDE
When it comes to deciding who will get your money and possessions, you generally have the freedom to do what you want with your estate. The exception (and this varies somewhat from province to province) is leaving out your spouse or children. In general, you have to provide adequately for your spouse. This doesn’t mean you have to leave them everything necessarily, but you need to leave them something. In some provinces a spouse who is left out of a will can choose to take what they would be entitled to if they got divorced, which can be half of the estate. In most provinces, you can exclude your grown, independent children from a will. But if they are dependent children, you can’t. In British Columbia, even grown children can challenge a will if they think they were treated unfairly. If your wish is to exclude your spouse or children, you definitely want to speak with a lawyer.
HOW A WILL CAN BE CHALLENGED
There are ways that certain people can challenge your will. Generally it’s a spouse or child (or other beneficiary under the will) who can challenge. Most commonly, this is done on the grounds of undue influence or lack of capacity. In other words, someone challenging the will would be arguing that the person making the will either didn’t understand what they were doing (sometimes as a result of illness) or they were being influenced by someone. For example, we see cases where someone who is old and frail gets befriended by someone, and when they die and their will is read, it’s revealed that they changed their will to leave everyone to that new friend. In these cases, the onus is on the person challenging to show that there was some kind of undue influence.
EMBRACING THE AWKWARD TALK
Talking about wills can be awkward at times, but it’s very important. Especially if you want to leave money to people or organizations other than your family, sometimes it’s a good idea to tell your family in advance to avoid any shock when the will is read. There have been some prominent cases involving families fighting over money when a person dies. You want to try to avoid this by letting your loved ones know what you intend to do in your will, and taking into account ways that people might challenge your will. A lawyer can help you navigate these issues so that the process is easier for everyone involved.