How do I know if my will is legally binding? Will it hold up in court? Do I need a lawyer or notary to make my will legal? What happens if my will is contested?
These are common questions we hear from Canadians, and ones that are important to ask as you create your estate plan. In this article, we explain what makes a valid will and why a will can be contested so you can feel confident in your estate plans.
How Can I Ensure I've Created A Legal Will
- As long as your will complies with your provincial laws regarding valid wills, an online will carries the same legal weight as one created by a lawyer
- As long as your will is written and signed by you when you are of sound mind you do not need a lawyer to create it
- In the case of a typed will, it must be witnessed correctly to be legally valid (details below)
- Any will can be contested, regardless of how you make your will — even a will created by the most expensive estate lawyer in Canada can be contested
If your will is contested, it’s up to the courts to decide whether your wishes will be upheld.
What Makes A Will Legal In Canada?
A will is a document that outlines how you want your estate to be distributed once you’ve passed away. Your estate includes all your assets— anything you possess of financial or other value. Exceptions include jointly owned assets, pensions or life insurance policies that have a specific death beneficiary.
From your estate, you can choose to leave specific gifts to individuals, as well as legacy donations to charities and organizations that are close to your heart. Anything left over is called your ‘residual estate,’ or simply ‘the residue.’ The most current version of your will, if executed wholly and correctly, should override previous versions of your will or verbal agreements you may have made during your lifetime.
While there are nuances in provincial laws and language, this is the criteria to create a legal will in Canada:
- It must be in writing as a physical copy (you cannot store a will online)
- You must be over the age of majority in your province and of sound mind
- Exceptions: BC residents must be at least 16 years of age. 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 with two witnesses present and they must sign to confirm they have witnessed your signature. 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. 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.
- Valid Witnesses: Your witnesses cannot be a named executor or their spouse and cannot be a named beneficiary or their spouse. * If a witness is a beneficiary, the gift made to that person might not be considered valid. The best practice is to find witnesses who do not benefit from your will.
- The signatures must be at the very end of the will
Each Willful document created comes with a detailed instruction page to make sure all the legal requirements are followed.
Do I Need A Lawyer Or Notary?
When it comes to estate planning, some people turn to lawyers in search of legal advice. Identical, self-made or computer-generated documents that follow the provincial requirements are just as legal as those prepared by a lawyer. However, some people may benefit from advice on a complicated matter (i.e. what to consider when dealing with foreign property, if you have a blended family, you are under legal obligation to pay support, etc.) and might need customized language beyond what is typically standard in estate planning.
Some people liken it to doing your taxes. If you have a straightforward return to file, you can choose to use:
- Tax forms provided by your provincial government to mail in yourself
- Free or paid tax software you can do your own taxes and digitally file yourself
- Visit an accountant or tax specialist to have them file on your behalf
While each method is valid, each option depends on the needs, concerns, and comfort level of the individual. The majority of people will not need to seek a tax specialist, which is similar to those who need a will and other estate planning documents like power of attorney for property and personal care.
The legality of a will is based on the final document and correct witnessing and signing, not on who prepared it. To read more on what is required according to each province, we’ve provided links to each province’s attorney general pages below.
Read More: Does my will need to be notarized?
What Is Probate, And When Is It Required?
Probate is the process of a Will being accepted as valid by the court system. It is initiated by the will’s named Executor/Trustee, or their legal representative, “applying for probate” to the applicable provincial or territorial court system. Some estates do not need to be probated and can be handled informally, however probate will be required if:
- The estate contains any real estate held solely in the name of the testator
- The estate contains shares in a publicly traded company
- The estate contains financial accounts held solely by the testator (not joint with another party)
- The will is controversial and is likely to be challenged
Just because a will goes through probate does not necessarily mean it has been contested.
Will My Will Hold Up In Court?
Contesting a will involves a legal proceeding in which arguments are made in court to have the will made invalid. Contesting a will must be initiated by a person who believes it is invalid or unlawful. What’s important to note is that any will can be contested, regardless of how it was prepared.
A will prepared by the testator (the author of the will) that is either handwritten (holographic will), created using a store-bought Canadian will kit, an online platform, or yes even one prepared by a lawyer can all be contested if someone chooses to do so. What most people worry about when preparing their will is whether their wishes will be overturned by the courts.
Contesting a will involves a lot of time, money and evidence to support the claim being made. Every case is different, but the most common reasons for contesting a will include:
This is when someone believes a person (or persons) has pressured the testator (author of the will) to change their will. This occurs most often with vulnerable people like the elderly or those with a cognitive impairment.
Lack of mental capacity
This is when someone believes that the testator is unable to make their own decisions due to an illness, disability, or mental health problem.
Problems with the will itself
This is when someone challenges the validity of the will because of contradictions in language, improper witnessing or lack of signature.
A family member is cut-off
A cut-off family member may contest a will and could claim undue influence or lack of mental capacity. This is different than a spouse or child who may be entitled to support under provincial law and can make a dependant support claim.
Interpretation of the will
This is when a clause is vague and gives rise to one or more conflicting meaning.
Fraud or forgery
Also falling under undue influence. This is when someone uses lies, threats, etc to get the testator to change the way they distribute their assets or forges their signature to benefit from the estate.
When someone decides to contest a will, it doesn’t mean it will be overturned. It can take the court a long time to look at all of the facts and make a decision.
While the majority of wills are upheld, if the court decides a will is invalid it can either put an earlier will in place if one exists or distribute assets according to government intestacy laws.
Legal Wills In Different Provinces
For more information on legal wills in specific provinces here. The information broken down above is based on the legislation for each province and territory:
- Ontario - Succession Law Reform Act
- Manitoba - The Wills Act
- Saskatchewan - The Wills Act
- Alberta - Wills and Succession Act
- British Columbia - Wills, Estates and Succession Act
- Quebec - Succession Duties Act
- Newfoundland and Labrador - Wills Act
- New Brunswick - Devolution of Estates Act
- Nova Scotia - Wills Act
- Prince Edward Island - Probate Act
- Yukon - Wills Act
- Northwest Territories - Wills Act
- Nunavut - Wills Act