You’ve decided you need to make a will. Awesome - but you’re probably thinking “now what?”
The good news is that you’ve already taken the first important step towards having a solid estate plan in place. Now you’re tasked with figuring out how to create your will, and as you’ve likely found through your research, the process and options can be overwhelming.
In this article, we break down the basics of how to make a will, the different types of wills, and which scenarios are ideal for each type.
Making A Will In Canada
The rules and language vary province to province, but here are the basic rules for how to make a legal will in Canada:
- You must store the will as a physical copy (you cannot store a will online)
- You must be of sound mind and over the age of majority in your province (If you’re under the required age, there are specific circumstances that allow you to make a legal will, like if you’re married, have children or are a member of the armed forces.
- If the will is typed, you must sign your will in wet ink in the presence of two valid witnesses and they must sign to confirm they have witnessed your signature.
- The signatures must be at the very end of the will.
When Should I Make A Will?
The truth is, all adults should have a will. However, there are some key life situations and events that make it more important to have a will. Here are some common examples of when you should make a 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.
Now that you know the basic criteria for how to make your will legal and when you need a will, it’s a good idea to familiarize yourself with the different ways to make your will.
Ways To Make A Will In Canada:
Regardless how you decide to make your will, it's crucial to understand that what makes a will legally-valid has nothing to do with whether it was created using a lawyer. In Canada a will simple needs to meet the criteria set out above. Here 4 different ways to make your will:
- Write a Holographic Will (also known as a handwritten will)
- Purchase a DIY Will Kit
- Use an Online Will Platform
- Visit A Lawyer
Depending on your unique life situation, there are pros and cons to using all of the above options. To help find the best option for you, we've broken down the benefits and how you can make a will using each method.
How To Make A Holographic Will (Handwritten Will):
A holographic will is a will that is written by you without the aid of any mechanical process. It must be handwritten and signed by you, and it is the only type of will that does not require the signatures of two witnesses. In order to make a holographic will, you typically only need a pen and paper, and yourself of course.
When Should You Make A Holographic Will:
- You have a legal background and know how to word/phrase your will without contradicting yourself
- You do not have access to any of the other available options
- You cannot spend any money on creating your will
- You cannot sign your will in front of witnesses
When To Avoid A Holographic Will:
While they’re cost-effective, holograph wills may not be the best option since most people don’t have legal backgrounds, and therefore we can contradict ourselves, or leave important things out. They also aren’t ideal if you need to make updates.
Holograph wills may be a good fit if this is the only option you have, and even then, you need to do your research to ensure they’re worded in a way that avoids contradictions.
Also, ensure you only keep the most recent copy, and inform your executor about your holographic will— Aretha Franklin’s family only found her holographic will almost a year after she passed away, and they found multiple versions that contradicted each other.
Note that in BC, a holographic will cannot be used to deal with real property (for example a home), and holographic wills are not recognized at all in PEI.
How To Make Your Own Will With A DIY Will Kit
A DIY will kit is a printed fill-in-the-blank document that allows you to fill in the key information about your estate—who you are, who your executor would be, who your beneficiaries would be, and who would be a guardian for your minor child. Think of will kits like Mad Libs for estate planning—you fill in the blanks with your information, and once signed and witnessed correctly, you have a valid will.
When You Should Use a DIY Will Kit:
- You have a very simple estate that does not require any custom or specific requests
- You want to spend less than $50 on creating your will
- You are not comfortable using online tools
When To Avoid A DIY Will Kit:
The biggest downside of DIY will kits is that they are one-size-fits-all. Every person buying a will kit has a unique life situation, but the will kit treats them all the same. This may be fine for some people with very simple wishes, but it largely doesn’t take into account any complexities, extra wishes, or funeral wishes.
It can also lead to the wrong people witnessing your will, since there are rules around who can sign your will. And, if you’re someone who wants to be able to make updates, they require that you purchase a new kit every time your life situation changes.
Note that in many provinces, the government provides free downloadable will templates online, so if you’d like to pursue a DIY option, it’s worth researching your provincial resources first.
How To Make A Will Using An Online Platform (like Willful):
An online will platform like Willful combines the convenience of a will kit with a degree of the customization you would expect from an estate lawyer.
It’s generally easy to make a will online as they are designed to walk you through the process. Platforms like Willful don’t function like a fill-in-the-blank form, rather we guide you through a series of questions to assess your life situation and create a customized document tailored to you.
When You Should Make Your Will Online:
- You don’t have a complex estate (an online will platform like Willful is not ideal if you have a child with a disability who requires a Henson trust; if you want to disinherit someone from your will; if you want to make certain gifts conditional; or if you’re separated but not divorced and you want to ensure your ex doesn’t benefit from your estate)
- You’re single/married/common law, have assets (property, investments), have children and/or pets; and live in our active provinces
- You want to be able to make changes at any time in the future - Willful offers free updates anytime
- You prefer to use online tools. Keep in mind you still have to print & sign your will - it’s the law.
- You want to spend less than $250 on your will
- You don’t need legal advice
- You want a will that has up-to-date legal content - all of Willful’s content is created in partnership with estate lawyers in each province, and those legal advisors keep our content up-to-date
Read More: A Guide to Making An Online Will in Canada.
When To Avoid Making A Will Online:
Online wills are ideal for many people, but they don’t cater to people with complex estates who need a variety of very custom clauses, and they also aren’t a fit for anyone who wants to sit down and talk to a lawyer about their situation.
With Willful, you can start your will for free and we offer a 30-Day Money Back Guarantee! If you have questions about if Willful is the right fit for you, free to book a call with our team. We’re always here to help make sure you get a will that suits your unique needs.
How To Make A Will With A Lawyer:
Creating your will with an estate lawyer is the most expensive, but also the most comprehensive, option. Estate lawyers are trained in estate law, and can handle any complex estate, and give advice on any aspect of your situation. They’re also usually well-versed in estate taxes, so can advise you on how to minimize your estate taxes.
When You Should Have A Lawyer-Drafted Will:
- You have a complex estate - a child with a disability, you’re separated but not divorced, you want to disinherit someone, you have a business and need a dual will, or if you just want lots of custom clauses or wishes, such as gifts with a requirement that has to be satisfied or fulfilled before the beneficiary will be entitled to receive the gift
- You have the budget to pay a lawyer - typically even simple estate plans will cost $800+ with an estate lawyer
- You need legal advice - you have questions about your estate plan and only a lawyer can answer
- You want advice on minimizing the taxes that will be owed by your estate
- You want a lawyer to create the will so they can handle the probate process as well (moving the will through the court system after you pass away)
When To Avoid Using A Lawyer To Make Your Will:
The biggest barriers to people visiting an estate lawyer are cost and convenience. It’s expensive to get a will from an estate lawyer, and usually you have to make an appointment during work hours (which became even more difficult during COVID, when in-person appointments weren’t possible). Lawyers are often working from their own templates for estate plans—they’re not creating each one from scratch—so if you have a simple estate, it can feel like overkill to visit a lawyer. Also, it means paying hundreds of dollars every time you have to make an update - typically you’ll go through 3-5 life changes (birth of a child, marriage, divorce) that will require updates to your will, which can add up over time.
Read More: How Much Does A Will Cost?
The Worst Type Of Will Is No Will At All
There you have it - a guide to the different ways you can make a will in Canada. The key takeaway here is that the worst type of will is no will at all - our research shows two-thirds of Canadian adults don’t have an up-to-date will, and that means a lot of families aren’t protected. If you die without a will (what the courts call “intestate”), provincial courts will decide what happens to your assets and your minor children. Often, this won’t be what you would have wanted.
Remember that tomorrow isn’t always guaranteed, so once you’ve decided how to make your will - be certain you actually get it done! Regardless of which method you choose, make sure it’s a fit for your unique life situation