A legally valid Will in Canada is an important part of successful estate planning. While it may be unnecessary if you don’t have many assets to distribute, it becomes vital when the inheritance is bigger than average (>$50,000). In this case, a Will properly distributes your legacy so as not to offend anyone.
A Will also makes the future easier and more certain for those who you leave behind. So, it is a good idea to waste some time, money and effort to learn legally valid will requirements to save much more in the future.
What Are the Requirements for a Will to be Valid in Canada?
It is important to know that everything becomes more challenging when you DON’T HAVE a Will or if it isn’t legally sound. The probate process takes place if there is no Will. It isn’t beneficial at all and even more than unprofitable for common-law spouses, charities and close friends. They are likely to receive nothing (even if you don’t plan this) since the law distributes your property to your closest relatives in the first place.
It is also a great idea to create a legally valid will in Canada if you have minors in custody.
The desire to protect the family is natural, and a Will helps do just that.
It includes all your wishes while giving the assets to those who, in your opinion, deserve them the most. Here is a checklist to make sure your Will is legal and can hold up in court (Please, also note that legally valid Will requirements can be slightly different for each province in Canada. To make sure that there are no mistakes in your document, you can contact De Krupe Law wills and estate planning lawyers):
- You must be over the age of majority in your province and of sound mind. There are specific circumstances that allow you to have a Will even if you are underage: you’re married, have minor children, or are a member of the armed forces.
- You can’t store a Will online (outside British Columbia). It must have a physical copy on paper.
- You and two witnesses must properly sign a Will. We wrote a guide on who can witness a Will in Ontario, so feel free to read it, too. The testator’s (your) signature must precede the signature of either witness. It will be ideal if you and your witnesses are in one location. However, since COVID, witnesses can sign a will using a video link if one of the witnesses is a licensed lawyer or paralegal. Your signature must be at the end of the Will (it will be even better if you additionally sign each Will’s page). Someone else can sign your will only if they have Power of Attorney or other legal grounds to do so.
- Your witnesses must be valid. It is recommended to have witnesses who won’t benefit from your will.
- In either kind of will (typed, holographic, online), your signature must be at the very end of the will.
The general requirements to draft a legally valid will in Canada are above. Each circumstance is unique, so we advise consulting with a legal specialist to avoid mistakes.
Do I Need a Lawyer to Draft a Legally Valid Will in Canada?
No, it isn’t necessary to have a lawyer or notary to draft a will. It can be completely handwritten (so-called holographic Will), made online, using will kits, or typed. You only need valid witnesses to verify it. Nevertheless, we recommend contacting our team to avoid costly mistakes in the future. Every will, even made by the most experienced lawyer, can be contested. What is it and why?
Why Can Someone Contest My Will and What to Do?
Contesting a will is a long and tiring legal process. It starts if someone thinks that your will isn’t legally valid. There must be serious evidence to make the court overwrite your wishes. Common reasons to contest a will include:
- Lack of mental capacity (a person who contested your will believes you weren’t of sound mind when you drafted or signed it)
- Undue influence (someone may have influenced your decision to distribute your assets the way you did (fraud or forgery))
- You haven’t signed a family member (even if you don’t want to gift anything for whatever reason, you can’t just cut off a family member.)
Even if your will has problems, don’t panic. The De Krupe Law team has a litigation lawyer who can support you if someone contests it. Don’t hesitate to contact our real estate lawyer in Toronto and get professional, comprehensive legal aid anytime.