Congratulations! You’ve decided to take the first step towards getting an estate plan in place: researching more about legal wills in order to decide which route is the right fit for you. We covered legal will basics in another Learn Centre article, so in this article we’re specifically going to cover everything to do with online wills. We get a lot of questions from customers about online wills - how are they different? When are they the right fit? And...are they really legal? We’ll address all of that here, and if you still have questions after reading, you can always use our live chat feature, call us, or reach out to firstname.lastname@example.org to get answers to your specific questions.
First things first: what makes a will legal in Canada?
We get asked all the time about whether our wills are legally-binding, so we wanted to clear that up first. Each province has its own legislation governing wills and estates law, but the basic requirements are the same across Canada. In order to be legally-binding, a last will and testament must meet the following criteria:
- Written by you in sound mind and you must be the age of majority in your province
- See our Glossary for a definition of the age of majority in each province – note that in BC, one can make a will at 16 even though the age of majority is 19, and in Newfoundland one can make a will at 17 even though the age of majority is 19.
- Also note that certain jurisdictions allow a minor to create a will if they have been married, have children, or have a common-law spouse
- Signed with a wet signature - that means you have to print your will, and sign it on paper with ink. The testator’s signature should be placed at the end of the document. While not required, it is best practice to initial each page of the will in addition to signing on the last page. In some circumstances, it is possible for someone else to sign on behalf of the testator, but it should state that it was signed by someone else on the testator’s behalf in his presence at his or her direction.
- Signed by two witnesses, who must sign in the presence of the testator, and who do not benefit from your estate - for example if your spouse is one of your beneficiaries, they cannot sign your will as a witness. The two witnesses don’t necessarily have to sign in the presence of the other witness, but the testator must sign in the presence of two or more of the attesting witnesses. The sequence matters: the signature or the acknowledgement of the signature by the testator must precede the signature of either witness.
If the will is not signed properly, then it becomes an intestacy. If you choose to use Willful, we provide an instructions page with each of our documents that outlines who can and cannot be a witness for you, and we provide signature boxes that clearly show where each person should sign.
The exception to this is if you create a holograph will (written on paper by you), which often does not require two witnesses – note that holographic wills are not legally-valid in BC if you own real property (like a home), and they are not recognized in PEI. Also note that there are exceptions to the formal requirements for those in military service, members of armed forces, and mariners.
There is no law that says a will has to be drafted by a lawyer - as long as you meet the conditions above, your will is legally-binding.
What are the different ways to make a will?
There are a few key ways you can create a legal will:
- Holograph will a holograph will is a will handwritten (not typed) by you (the testator) and signed by you. It does not require the presence of any witness. This method is often not recommended, as people often make contradictions and/or errors. Note that in BC, a holographic will cannot be used to deal with real property (for example a home)
- DIY will kits: you’ve likely seen a will kit at a store like Staples - these are template documents with fill-in-the-blank spaces for you to write your wishes. The issue with these documents is that they’re one-size-fits-all, and they don’t provide any customization or flexibility. They also don’t allow for future updates (you would need to purchase another will kit in order to make a change)
- Online wills: platforms like Willful are different from DIY will kits - our platform does not provide fill-in-the-blank templates, rather we work with estate lawyers across Canada to build our legal content, and we ask you a series of questions about your unique life situation to create a completely customized document tailored to your case—think of it like TurboTax for estate planning
- Estate lawyers: estate lawyers (or notaries in Quebec or BC) are able to create completely customized wills for any case, regardless of how complex
What are the benefits to an online will platform?
The benefits to an online will platform like Willful are:
- Cost - a fraction of the cost of visiting an estate lawyer
- Convenience - you can create your will at home or at work without having to make an appointment or work around someone else’s schedule
- Time - once you’ve made key decisions (your executor, guardians, beneficiaries), actually using a platform like Willful to create your will online takes less than 20 minutes, and you can do it at a date and time that’s convenient for you
- Simplicity - if you have a simple estate, you don’t need to visit a lawyer (in many cases). A platform like Willful is sufficient in about 90% of cases
Who should use an online will platform like Willful?
Willful may be a fit if:
- You own property in Canada
- You have assets/investments in Canada
- You have a child or children
- You have a pet and want to assign a guardian and/or leave a part of your estate to that guardian for their care
- You want to leave specific gifts (for example art or jewelry)
- You want to leave a cash gift or percentage of your estate to charity
- You’re single, legally-married, divorced, or in a common law relationship (if you’re separated, there are complexities that will require visiting a lawyer)
- You don’t have any complex “if this then that” scenarios - you have several beneficiaries you will split the estate amongst, but don’t need to create any unique stipulations
- You want to create power of attorney documents in order to outline your wishes and appoint someone to make decisions on your behalf if you become ill or incapacitated (sometimes known as a living will)
Willful is ideal for people with simple estates. If you’re not sure if your estate is simple enough, reach out and we’ll be happy to discuss if we’re the right fit - and we can direct you to the law society in your province if your situation is too complex for our platform.
Which situations add complexity, and may require speaking with a lawyer, tax specialist, or financial advisor?
- You own property outside Canada (there are tax implications, and one may want to create multiple wills in different jurisdictions where property is held)
- You have an out-of-province or out-of-country executor (they may be required to post a bond against your estate, and there can be tax implications)
- You want to disinherit someone from your will
- You want to add custom clauses to your will
Who should not use an online will platform like Willful?
You should consider visiting an estate lawyer in your area if:
- You live outside one of our active provinces (right now we help people create wills in Ontario, BC, Saskatchewan, Nova Scotia, Alberta, Manitoba, and New Brunswick)
- You’re separated but not divorced
- You have a business and would like to create a dual will
- You want to create multiple wills in different jurisdictions
- You have very complex “if this, then that” scenarios that you would like to include in your will
- You want to set up specific or unique rules around your minor child’s trust (for example Willful allows you to dictate at which age they will receive their inheritance, but if you’d like to create a tiered payout structure, you would need to visit a lawyer)
- You have a child with a disability and need to set up a Henson trust
- You want to create a Life Interest trust (this gives someone the ability to live in or benefit from your property or assets until they pass away)
- You want to speak with someone to get legal advice about your specific situation
- You have a blended family - Willful may not be right for people with blended families, as even in the most straightforward of cases (i.e. passing to spouse, then splitting everything amongst all children of both spouses) there may need to be special considerations made
- You otherwise have a complex estate
Can a Willful will be contested in court?
In addition to being asked about the legal validity of our wills, we often get asked whether our wills will be contested in court. It’s important to note that whether your will is legally valid when created, and whether your will holds up in court if contested are two separate things. Any will—regardless of whether it’s written by you on a piece of paper, or created by the most seasoned estate lawyer in Canada— can be contested in court. It’s up to the judge who is evaluating that specific will to determine whether it reflects your wishes and whether to uphold it.
It is important to note that while any will can be contested, creating a will that clearly expresses your intentions is the best way to ensure it holds up in court.
Can I update my will online? If so, what do I do with the old will?
If you elect to create your will online using Willful, you can make updates to it at any time for free—for example if you have a child, get married, go through a divorce, or want to add a new beneficiary. It’s important to note that when you make an update, you have to print and have your will signed correctly in order to make it legally-binding. At the time the new will is signed, the older will automatically becomes invalid, and you should destroy it. Make sure to inform your executor that you’ve created an updated version if you are storing it somewhere different.
Can I store my will online?
Unfortunately the law does not support signing or storing wills online. While you can use an online tool to create your will, you always need to print and have your will signed correctly, store it in a safe place, and inform your executor of its whereabouts so they know where to find it when you pass away.
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. By registering your will, a lengthy search (and the stress and potential costs that come with it) is easily avoided.
Finishing your online will during COVID-19
Canadian law requires that in order to be legally-binding, will and power of attorney documents must be physical, printed documents that are signed in the presence of two (2) witnesses, and those witnesses must also sign the will.
Understandably, finalizing your will may be a challenge as you follow the Canadian government's recommended measures for COVID-19 prevention (for example, physical distancing).
Here are some useful resources to help you finalize your Willful will while minimizing contact with your witnesses:
- Finishing Your Will During COVID-19
- Ontario and British Columbia Governments Approve Virtual Witnessing during COVID-19