Making a Will – How do I make a will?

How do I make a will?  Common questions about creating a will

Who can make a will?

In Alberta, any adult (age 18 or over) who is mentally capable can make a will. In addition, a person under the age of 18 can make a will if she or he:

  • has a spouse or adult interdependent partner;
  • is a member of a part of the Canadian Forces on active service or regular force under the National Defence Act; or,
  • has the permission of the Court.

How do I make a will?

There are three ways to make a will:

  1. hire a lawyer to draft a will for you;
  2. complete a store bought form will; or,
  3. write a will entirely in your own handwriting (a holograph will).

Making a verbal recording of your wishes (such as a video, CD or MP3) is not enough and will not be considered a valid will.

Do I have to use a lawyer to make my will?

There are certainly advantages to having a lawyer prepare your will. He or she has a lot of expertise that you can call upon to deal with matters like tax consequences, international issues, trusts, making suitable arrangements for young children, and many other issues.

Wills have to be worded very carefully and precisely to make sure that exactly what you want happens. Lawyers are skilled in the careful use of language and are unlikely to make a mistake.

In the unlikely event that the lawyer should make a mistake, there is insurance to cover the situation. It is particularly important for some people to consult a lawyer when making a will:

  • people with large and complex estates (for example: issues such as business assets, children who live outside of Canada, and children with special needs);
  • people who are separated or getting a divorce;
  • people with blended families;
  • older or ill people who feel that they are being pressured or influenced by others;
  • people who are thinking about getting married; and
  • people starting or ending an adult interdependent relationship.

What is a holograph will?

A holograph will is a will that you write entirely in your own handwriting. These wills are valid in Alberta, but not in all provinces in Canada. The advantages of holograph wills are that they do not require any witnesses and they can be prepared quickly and privately.

There are some very interesting examples of holograph wills. The most famous in Canada concerns a Saskatchewan farmer who was trapped under his tractor when it rolled over on top of him and who managed, before he died, to scratch on the fender that he left his estate to his wife.

Certainly, holograph wills are handy in an emergency, and some people will write them before leaving on a trip or on some other occasion when time is short. However, it is very easy to make a mistake or write in a way that causes confusion, so holograph wills are usually not a good idea.

Are wills made on store bought forms okay?

This kind of will is valid in Alberta, if used correctly. These forms are readily available, are reasonably priced, and come with instructions for filling them out.

They offer the advantage of privacy, since no one but you needs to know the contents. They also offer the advantages of speed and low cost.

The disadvantage is that, as opposed to a holograph will, they are subject to the same conditions as a will done by a lawyer and, sometimes, these requirements are not explained in detail.

For example, the Wills and Succession Act sets out very specific conditions for the witnessing of wills. A store bought form will still needs to be witnessed by two people. Each witness must see you and the other witness sign the will at the same time. If all three persons are not present at the same time and do not watch each other sign the will, it may be held to be invalid (only a court can decide if a formality such as this one can be waived).

A beneficiary (a person who gets something under the terms of the will) and a beneficiary’s spouse or adult interdependent partner should not be a witness. If such a person does sign as a witness, that does not invalidate the whole will, but the gift to that person will likely become void unless a court rules otherwise. For example, if you leave your estate to your wife and your wife is one of the witnesses to your will, then
the gift to her likely becomes invalid.

Wills on store bought forms may also run a risk of being confusing in their interpretation, especially if a person simply fills in blanks (as then the will is neither wholly typewritten or wholly in handwriting). If you decide to make your own will using a store-bought form, be sure that you:

  • do your research;
  • know all the rules about making a will;
  • read the instructions very carefully; and,
  • make sure that you fully understand the instructions.

If you have any doubts, consult a lawyer.

What mental capacity do I need to make a will, and who decides if I have that capacity?

Having the mental capacity to make a will (also known as having testamentary capacity) means that you must:

  • know that you are making a will and understand what a will is;
  • know what property you own; and,
  • be aware of the people (such as a spouse and children) you would normally provide for.

You must have testamentary capacity at the time when you make the will. If you become mentally incompetent after you make a will, it is still a valid will.

Testamentary capacity can be an issue with individuals who have a mental infirmity or who are very ill. The mental capacity of a very ill person may be affected by their illness, drugs, or pain. This can mean that the person sometimes has testamentary capacity, and sometimes does not. Making your will while you are in good health may avoid the problem of having your mental capacity questioned.

In addition, you must know and approve of the contents of your will. If you were misled, whether by fraud or simply by accident, or if someone put undue influence on you, your will may later be found to be invalid.

For example:

  • undue influence would occur if someone (such as your child or your caregiver) pressures or forces you to make a will so that he or she can benefit from it;
  • fraud would occur if you were persuaded to sign a will but you believed that it was some other document.

This is another reason for meeting with a lawyer to discuss your will. This may provide proof that the will was made by your own free choice. Further, you should be alone with the lawyer when making your will. You need to be able to speak freely without being afraid of hurting anyone’s feelings.

Who can be a witness to my will, and what are my witnesses’ responsibilities?

A witness must:

  • be 18 years of age or older;
  • cannot be a beneficiary under the will or the bequest (person property left to a beneficiary) to him or her may be void; and,
  • cannot be the spouse or adult interdependent partner of someone who is a beneficiary under the will (or the bequest to him or her may be void).

The person who is appointed as personal representative can be a witness. The witnesses do not need to read your will. All they have to do is see you sign your name to the will, and then they sign the will in front of you.

Witnesses are required to act in good faith and should refuse to witness the will if they have reason to question the mental capacity of the person who is signing it. As long as they meet these standards they will not be held responsible even if the will is later challenged.

What should I do with my will after I have completed it? Do I need to register it with the Alberta government?

It depends on your situation. Many people choose to put their will in a safe place that their personal representative knows about and can be easily accessed (i.e. a safety deposit box at their bank). Others choose to leave it with a trusted third party such as their lawyer.

If you do this, however, it is important to remember that it may be many years before your will is needed and the person you have left it with may have moved away or even died in the meantime.

There is no requirement that a will be registered. The government does not keep a registry (except for international wills – your lawyer can discuss this issue with you).

It makes sense, however, to make sure that the people in your life who need to know about these documents, especially your power of attorney and personal representative, have a copy or know where to get one if needed.

In addition, you should review your will every few years, as circumstances can change quickly.

If I made my will in another province, do I have to make a new one if I move to Alberta?

You will not always have to remake your will. However, if you want to be sure your out-of-province will meets the requirements of Alberta law, it is a good idea to have it reviewed by an Alberta lawyer.

Similarly, if you move to another province, it is a good idea to have your will checked by a lawyer in that province to see that it meets the legal requirements of the province where you will live.

In addition, a holograph will written in Alberta may not be valid in another province, depending on the province to which you move.

For more information on updating your will see “When should a will be updated“.

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