Why should I make a Will? Won't everything I own go to my family regardless?

Not necessarily. If you want to ensure that your wishes as to the distribution of your property are carried out after your death, you need to make a Will, and update it whenever your situation changes (e.g. you buy additional property, you get married, have children, are divorced, etc.).

Your Will serves several purposes. It allows you to name one or more executors to administer your estate and distribute your property to the beneficiaries. It lets you decide and control when and how your assets are to be distributed, and to whom. It will determine the age at which any minor beneficiary will receive a bequest and can make provisions for minor children. And it can minimize the cost of administering your estate, and help to reduce or postpone tax liabilities arising at death. More importantly, it makes it easier for your family and loved ones to deal with these matters following your death.

If you die intestate, i.e. without a Will, this can cause a great deal of expense to your estate, further grief for your family, and can result in your estate being distributed in a manner that may not be according to your wishes.

Each province has specific legislation and regulations dealing with the distribution of the estate where there is an intestacy. In many provinces and territories, the spouse of the deceased receives a preferential share of the estate, however, the amount of that share varies greatly depending upon the province. In all provinces except Quebec, after the preferential share has been determined (if applicable), the surviving spouse is entitled to a “distributive share”, which varies in accordance with the number of surviving children.

How does the law that governs making a Will in Canada change from province to province?

All provinces and territories recognize the validity of a “conventional Will” (also known as the English Law Will). A “holograph Will” is considered legal under the laws of Alberta, Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick and Newfoundland. Quebec's Civil Code provides for a notarial form of Will. The laws that apply will depend upon where the Will was drafted and in which province the person making the Will (the testator) was living at the time of death.

What is the difference between a conventional Will, a holograph Will, and a notarial Will?

A conventional Will is the most commonly used form of Will. Because a conventional Will is recognized by the laws of all provinces, this is the type of Will you should consider making. A conventional Will is made in writing and signed and dated in front of 2 witnesses, who must both attest to seeing the testator sign the document. The testator must be of legal age and mentally capable. The witnesses must also be mentally competent and of legal age, and cannot be beneficiaries of the Will, or a spouse of the testator. In Quebec the testator and each witness must initial each page of the Will.

A holograph Will is a completely handwritten Will, with no witnesses. Witness signatures are not required for a holograph Will to be legal. A holograph Will is particularly useful in cases of emergency where the testator has neither the time nor recourse to prepare a conventional Will. Of those provinces that accept a holograph Will, some require the testator's signature, and others do not. To be considered a holograph Will, the entire Will must be in the handwriting of the testator; a typed Will with the testator's signature is not accepted as a legal holograph Will.

Holograph Wills are valid in Ontario, Alberta, New Brunswick, Newfoundland, Quebec, Manitoba and Saskatchewan. In Nova Scotia and Prince Edward Island, the use of holograph Wills are not permitted, although the law in PEI was amended to permit a "substantial compliance" provision (Sec. 70 of the Act) to allow the court to recognize a holograph document if it is signed and judged to represent the testamentary intentions of the deceased. In British Columbia holograph Wills are not allowed, but the law will uphold a valid holograph Will made outside of BC, insofar as it applies to moveable property in that province. (sec. 40 of the Wills Act)

The Civil Code of Quebec (CCQ) states a holograph Will must "be written entirely by the testator in his hand and signed by him without the use of any mechanical process" (art. 726). However art. 714 considers a holograph Will that does not meet all requirements to be nonetheless valid if it satisfies the essential intentions of the form and if it represents without question the wishes of the deceased.

In the province of Quebec, a notary drafts a notarial Will in accordance with articles 716 and 717 of the Civil Code. Usually more expensive than a conventional Will (or "will made in the presence of witnesses"), it has added elements of security not to be found in the other types of Will. The notary ensures the legal formalities have been respected making the document more difficult to contest in court. Notarial Wills do not require probate. The Will must be dated and must indicate where the Will was prepared. The notary reads the Will before the testator and one witness (two witnesses in special cases), all of whom sign the Will in the presence of each other. The notary must not be the spouse of the testator, or otherwise related to the testator either by blood or marriage. Witnesses must be of legal age and cannot be in the employ of the notary, unless they are also a notary.

If I have to be “of legal age” to make a Will, what does that mean?

That depends on which province you live in. In Manitoba, Nova Scotia, Alberta, Ontario, Prince Edward Island and Saskatchewan, the age is 18. In New Brunswick and British Columbia, the age is 19, and in Newfoundland it is 17. In Quebec, a minor (under the age of 18) cannot dispose of any part of his property by Will, except articles that have little value. Generally, in all provinces, if an individual is married or in the Armed Forces, they can make a Will even if they are not of legal age.

I made a Will when I was single, but I have recently gotten married. Is my old Will still valid?

With the exception of Quebec, in most other provinces marriage revokes an existing Will unless the Will specifically states that it is made in contemplation of marriage and identifies your future spouse.

What if I own property or have assets outside of Canada?

In that case, you should consult with a lawyer about drafting an international Will. In 1973, the Convention Providing a Uniform Law on the Form of an International Will established rules for the acceptance of an international form of valid Will. All jurisdictions adopting the convention recognize standard formalities regarding the drafting, witnessing and administrative authorizations associated with these Wills. Not all provinces accept this type of will and its use is not widespread.

What is a codicil to a Will?

A codicil is an addition to a Will that is intended to make a slight variation to the Will, without revoking it and without the need for making a complete new Will. Since it is part of the Will, the codicil must meet all the same formal requirements of a Will. Thus, a codicil must be witnessed by two witnesses in the presence of the testator when executed. If it is going to be holographic, it must be written entirely in the handwriting of the testator and signed by the testator.

Can my spouse and I leave everything to each other?

Of course. The easiest way to accomplish this is by signing mutual Wills or mirror Wills. Mutual Wills have identical terms, with each testator being the beneficiary to the other's estate, or having common beneficiaries (such as children or the parents of both testators).

What is a “living will”?

A living will is NOT a form of Last Will and Testament. A Living Will is also referred to as an advance health care (or medical) directive, and it provides instructions to your physician and your family about the nature of medical treatment you wish to receive (or not receive) in the event you become incapable of communicating your own wishes. In cases where you might not have specific health care instructions, your Living Will can designate another person (a proxy) who will make medical decisions on your behalf if you are unable to do so yourself.

Only certain provinces - Alberta, British Columbia, Manitoba, Newfoundland, Ontario, Prince Edward Island and Saskatchewan - have laws that make health care directives legally binding. Quebec and Nova Scotia permit health care proxies but not living wills or advance health care directives; however, certain court decisions suggest that living wills may be legally enforceable even in those provinces that do not have legislation authorizing them. Instructions directing euthanasia are NOT enforceable.



The foregoing summary is provided for information purposes only and is not to be considered legal or business advice. The information may not be complete, accurate or applicable for any particular situation and should not be relied upon.