Everything you need to know about creating a will in Canada
In this article, we will answer all of the pressing questions on creating a will in Canada, and what’s needed to make it official.
What is a will?
Your last will and testament” is a legal document that outlines how you wish to distribute your assets, such as property or money, after you pass away. It also outlines guardians/custodians that you would want to care for minor children and pets after you die. Your will is also where you name your executor, the person who will be in charge of settling your affairs on your behalf.
When And Why Do I Need A Will?
Creating a will is an important responsibility of an adult and can be created once you reach the age of majority in your province or territory (visit our Glossary to find the age of majority in your province) barring certain exceptions. Life is unpredictable but having a will can help us prepare for the unexpected and protect our loved ones from future chaos and complications.
Assigning an executor helps provide access to the necessary accounts and property to settle your estate – if you pass away without a will, the courts have to appoint an administrator to wrap up your estate, and it may not be the person you would have chosen. Even if you do not own much in terms of assets, something as simple as access to clean out your fridge and personal belongings may be delayed if no legal executor has been selected in advance.
While all adults should have a will, here are some key factors that drive people to create their will:
- You recently got married or remarried, or are contemplating marriage – in many provinces, marriage revokes a will unless it was made in contemplation of marriage
- You are currently in a common-law marriage
- You recently went through a common-law separation or divorce – in many provinces, divorce revokes gifts made to an ex, but in other provinces divorce doesn’t affect the provisions of your will
- You have assets such as a home or multiple properties
- You have a child(ren) and/or other dependants
- You own valuable heirlooms such as art or jewelry
- You have assets that as a result of your death may cause tension among surviving family
- You own a business or investments
- You have a cause that you’d like to donate to upon your passing
If any of the above situations apply to you, it is a good idea to create a will as soon as possible so you can have peace of mind that your assets will be distributed among your loved ones in the way you intended.
Do I need a lawyer or notary to make a legally valid will?
Canadian law does not require you to create your will with a lawyer or notary. A lawyer can assist if you need legal advice, but many people have simple and straightforward estates that do not require legal advice. Platforms like Willful can guide you through the process to customize your legal documents to fit your needs and wishes.
Everybody has the right to prepare their own will. You can even draft your will on a blank piece of paper if it’s signed and witnessed correctly (called a “holograph will”). However using software like Willful ensures you don’t leave out anything important or create contradictions through common mistakes and errors. For example, if something hasn’t been accounted for in your will, such as valuable family heirlooms, then those would fall under the “residue” of your estates and would be distributed according to the laws of intestacy (the laws that govern what happens if you pass away without a will). Especially in Ontario, where there is no statutory authority for judges to use their discretion to allow something that looks like a will to stand as a will, as opposed to other provinces like Manitoba which affords more discretion, it is important that the formal requirements are abided by.
Read: Make A Will - Different ways you can make a will
What happens if I die without a will?
With reasons like, “I’m too busy in my daily life,” “it’s a morbid topic,” or “I’m too young to worry about a will,” it’s easy to understand why Willful’s research shows that more than 57% of Canadians do not have a will.
In the event you die either completely or partially without a will, the law says that you have died “intestate,” meaning that you haven’t left any instructions as to how you would like your property to be divided and distributed. Examples of situations in which partial intestacy arise are when the will does not contain a clause for the residue of the estate (everything that’s left after debts/taxes have been paid and specific gifts have been distributed), a gift of residue to a specific beneficiary in the will fails to take effect because the beneficiary passed away before the person making the will, or the will directs that the residue of the person’s estate be invested during the lifetime of a specific individual but does not provide for what should happen to the residue following the death of the individual.
So what does that mean for your assets? In these circumstances, your property will be divided according to the laws of the province or territory you live in. Usually, this is a set formula that the courts will decide on and ultimately your wishes or outcome will likely not be the same as what the courts choose. Negative implications if you choose not to make a will, or do not get the chance before you pass on, may include but are not limited to:
- Your estate may not be divided how you want it to be
- While spouses are entitled to a “preferential share” of the estate, common law spouses are not entitled to anything
- The court will decide who becomes the caregiver of any children
- Financial and emotional difficulties for your spouse and family (especially for those who are in common-law relationships)
- A missed opportunity for any charitable donations
- The time it takes to close your affairs may take months and even years longer than if you had a written will
We’ve all heard stories before about celebrities who die without a will, but this drama and pain is not exclusive to those with fame and massive fortunes.
How is a will used after I die?
Your will is the roadmap to help guide your executor to settle your affairs on your behalf.
It will be the job of the executor named in your will to distribute your assets as requested, which could include transferring ownership, paying off your debts, filing income tax returns, and distributing any remaining assets according to the terms of the will. Sometimes an executor is referred to as your personal representative. The executor is also responsible for following your wishes with regards to the disposal of your remains and your funeral planning. If you have specific wishes concerns your disposal, it is important that you appoint an executor who you can trust to fulfill your wishes.
Where should I store my will?
In Canada you can’t store your will online, and you also can’t have multiple copies of your will that you distribute to several family members. Only the original signed physical copy of your will is legally valid.
An original copy of your will should be stored somewhere safe, in a place that is known and accessible to your executor. If you’re keeping your will at home, we recommend storing it in a fireproof box or bag. Keep it away from moisture, direct sunlight or anything else that can impact the paper and ink.
You want your documents to be clearly legible for your executor and any institution that may need to see it.
Another good option is a safety deposit box, but it’s important to make sure your family or executor will have access to it when you pass away, so double-check with the bank in advance.
Registering your will on CanadaWillRegistry.org also helps to ensure your executor knows where it is - so if they forget, or you forget to tell them, your executor can perform a search to find out exactly where it’s located. BC and Quebec also have provincial will registries.
When and why do I need to update my will?
A will is not a one-and-done type of document. It’s living and breathing and should reflect life’s changes as they happen. Monumental moments like the birth of a child, purchase of a new home, marriage, or divorce are all life events that can directly affect and change your wishes.
An outdated will may mean your assets could end up with someone that you’re no longer associated with such as a former spouse or common-law partner. At Willful, we firmly believe that keeping an updated will is paramount and doing an annual check-in can help prevent outdated wills.
Ways to update your will
You may want to update your will after the birth of a child, marriage, divorce, or purchase of a large asset. In order to do that, you can either use a codicil (essentially an add-on to your will), or you can execute a new will that revokes the previous version.
You can also update your will through alterations – for example by crossing out or adding something to a paper copy of your will with a pen. If you make this type of alteration to your will, you have to sign next to the change you made in front of two witnesses who also sign next to your signature. (In the case of a will that was made as a privileged or holograph will, it just requires the signature of the testator, not the witnesses.)
Willful does not require that you create a codicil to update your will. Willful updates your will by revoking your current will and creating another properly executed will, which is why you will need to get your new will witnessed again and destroy your old will.
Does where I live (or move) affect my will?
In Canada, a will written in any province will be valid in other provinces, so long as its provisions do not contradict the laws of the province it is being applied in. There are differences in the laws, but courts will do whatever they can to carry out the clear intent of a will drafted in another jurisdiction.
At Willful, we ensure that each template document we create uses the correct terminology and verbiage outlined by the legislation in each province. We partner with local estate lawyers in each province who keep us updated on any changes in the law that could impact our customers and their documents.
What is a mirrored will?
Mirrored wills are used to allow two people, usually married couples, to create almost identical wills which leaves everything to each other. This would cover both parties’ wishes. If the two married people die at the same time, or within thirty days of each other, then everything would go to the couples’ children or a named beneficiary.
Introducing Family Plans!
In an effort to provide more flexibility and options for the purchase of 2 or more Premium plans, Willful now offers a Family plan! If you are a new Willful customer, you will no longer see the option to buy a Couples (Mirrored) plan. If you are an existing customer, this update does not impact your Couples plan, your Willful dashboard or your documents. To read more about what is included in a Family plan and how it works, read All About Willful’s New Family Offering.
Can I digitally sign and store my will?
You’ll need to grab a pen because digitally-signed wills are not currently recognized as valid in Canada. To maximize the likelihood that your requests are met, you will need a will that is physically printed and signed by you and your witnesses in writing. You may sometimes hear the term “wet signature” which just means a signature that needs time to dry or is signed in ink.
Who Can Act As A Witness When I Sign My Will?
Once you have drafted your will, and it accurately reflects your wishes, you must sign it in the presence of at least two witnesses. Although you, the testator, need to be present when the witnesses sign the will, each witness does not need to be there while the other witness signs. Sequence matters, and the signature or the acknowledgement of the signature by the testator in the presence of two or more attesting witnesses present at the same time must precede the signature of either witness.
Your witnesses could be any two adults; friends, neighbours or co-workers. The witness cannot be:
- A beneficiary of the will
- The spouse of a beneficiary at the time of signing
- A minor
After the printed document is signed and witnessed, it becomes your legal last will and testament.
Note that if your will is required to go through probate, in all provinces except BC one of your witnesses will need to provide a sworn affidavit of execution attesting to the fact that they were witness to the creation of your will. You can complete this at the time you execute your will, or a witness can provide it at the time of your passing.
What should I do after I create my will?
It’s not over yet! Once you’re happy with your will and it’s been signed and stored in a safe place here’s what to consider next.
Update it after life changes: It’s essential to keep your will up-to-date as life changes. Consider setting a calendar reminder every 6 or 12 months, so your Will doesn’t collect dust and reflects your most current wishes.
Let your executor know you’ve picked them: It’s a role that requires a lot of responsibility; therefore you should inform the person they’ve been chosen in order to avoid any surprises down the road.
Tell your executor and or family where it’s located: A will is pretty useless if nobody can find it! Make sure to let a trusted family member or your executor know where they can access it should something happen to you.
Register your will: Willful provides free registration on the Canada Will Registry so if your family or executor forgets where you stored your will, they can find its location through the will registry. (Read more about will registry)
Complete an affidavit of execution: If your will is required to go through probate (the process of a court formally accepting your will – about 90% of wills are required to go through probate), all provinces except BC require that one of your witnesses provides a notarized affidavit of execution as proof that they were witness to the creation of your will. You can choose to get this done now, or it can be provided at the time of your passing.
Record other key info your family would need to know: Your will is just the tip of the iceberg when it comes to wrapping up your life. Your executor would benefit from a list of key contacts (like a financial advisor), key accounts (bank accounts, investments, etc.), other accounts (cable, Netflix, etc.), and any other instructions that aren’t contained in the will.
We hope this article helped you learn more about creating a will in Canada. Please remember that Willful is not a law firm and cannot provide legal advice. All information in our Learn Centre is general and public information can also be researched through your provincial Attorney General website.