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Do I need a lawyer to draft my will?
The short answer is no. However, having a lawyer draft your will in Canada can provide several benefits. A wills and estates lawyer can ensure that your assets are protected and that you have control over the division of your family assets or the guardianship of your children. They can also help you avoid common mistakes and ensure that your will is legally valid. Additionally, a lawyer can provide guidance on complex issues such as tax planning and estate administration. While it is possible to write a will yourself in Canada, seeking legal advice from a lawyer may be beneficial for those with more complex estates or specific wishes.
Changing Your Will:
I. Can I make changes to an existing will?
In Canada, you can make changes to your will by crossing things out or adding new information with a handwritten amendment. However, there are very stringent requirements for these changes. It must be signed by you and the witnesses who originally signed your will. You can also update your will in three ways: a codicil, making an amendment, and executing a new will. If your original will is in paper form, you can change it by signing a separate document called a codicil. It’s recommended to review your will every few years to see if it needs to be updated because of changes to your situation or wishes.
II. How do I make changes to an existing will?
In Canada, to make changes to a will, you can manually annotate your will by writing on it. You would still need to at least initial the change and also have two witnesses sign. A handwritten amendment must be signed by you and the witnesses who originally signed your will. If your original will is in paper form, you can change it by signing a separate document called a codicil. For example, it must be in writing, dated, and signed by you and two witnesses. The codicil must refer to the will (and previous codicils) it’s amending. Only your most recent will is valid and will be implemented once it is probated. If you want to make some minor changes to your will, you do need to write a formal document.
What effect does a divorce or separation have on a will?
In Canada, divorce does not revoke a will entirely. However, gifts or appointments made to former spouses by will are automatically revoked if there is a subsequent divorce in many jurisdictions. This means that your former spouse will no longer be your executor, trustee or guardian, and any gifts you left to your former spouse will go to someone else. If the person who made the will dies without changing their will or remarrying, everything would go to their former spouse in accordance with the pre-divorce. It is recommended that one enters into a new will and revokes any existing ones after marriage or divorce. In Ontario, if the deceased was divorced or separated after the will is made, then the will is read as if the divorced/separated spouse had died before the testator.
In Canada, a will is not revoked by the separation of legally-married spouses prior to a formal divorce. However, there could be unintended consequences if there are no substitute beneficiaries, the shares left to them are uneven, or they are no longer appropriate. Upon separation, a gift to a spouse in your will becomes revoked under the Wills, Estates and Succession Act (WESA). This means that your former spouse will no longer be your executor, trustee or guardian, and any gifts you left to your former spouse will go to someone else. In Ontario, if the deceased was divorced or separated after the will is made, then the will is read as if the divorced/separated spouse had died before the testator. Prior to January 1, 2022, marrying after the date a will was signed caused that will to be automatically revoked.
Joint-Tenancy, Title, and Will Drafting
In Canada, the title of a property does not directly affect a will. However, adding someone to the title of a property can have implications for estate planning and may create risks. If owners are registered as joint tenants, when one owner dies, the property belongs to the surviving joint tenant. Registering an adult child to the title of a family home can also have implications for estate planning and how proceeds from the home are split between children.
In Ontario, a joint tenancy cannot be severed by testamentary disposition alone. However, a provision in a will can be used as evidence to determine whether there was a common intention to treat joint tenancy as severed. A joint tenancy can be converted to a tenancy-in-common by any joint tenant unilaterally, which is called “severing the joint tenancy”. When someone dies in a joint tenancy with the right of survivorship, their interest in the property reverts to the surviving owner. In Ontario, it only takes one party to sever a joint tenancy. It is possible to sever a joint tenancy either intentionally or inadvertently.
What happens when you die intestate (without a will)?
If someone dies without a will in Canada and has no children, their married spouse will receive their entire estate. However, common-law partners will not inherit. If there is no will, the government uses provincial laws to decide how to distribute the estate and appoint an executor. If someone has no spouse or children, their estate goes to their parents and is divided equally between them. In some provinces, if there are no children, the spouse receives the entire estate. When there are children, the spouse receives the first portion of the estate, and anything more is split between them.
Drafting a Will Online:
I. Should I have my online will reviewed by a lawyer?
While online wills have been created and/or vetted by estate lawyers in the jurisdiction in which you reside, it is recommended to have the will reviewed by a lawyer in Canada. A lawyer can provide guidance on how to properly draft and execute a will, ensure that it complies with provincial laws, and help avoid potential legal issues in the future. While creating a simple online will may be suitable for some individuals, it may not be appropriate for those with complex estates or specific needs. It is important to note that regardless of how the will was created, it can be contested in court. Whether your will is legally valid when created and whether it holds up in court if contested are two completely separate things.
II. What are the risks of not having a lawyer review your online will?
The risks of not having a lawyer review an online will include the possibility that the will may not comply with provincial laws, may not address specific needs or circumstances, and may be contested in court. Online will services should tell you not to use their service if you are going to be married or have a history of cognitive impairment. While using a DIY service is better than having no plan at all, it is important to note that these services may not provide the same level of legal expertise as a lawyer. Having your legal documents or contract reviewed by an attorney before you sign ensures your interests are protected. It is recommended to consult with a legal professional for guidance on how to properly draft and execute a will.
III. What are some common mistakes made when creating an online will?
Common mistakes people make when creating an online will include only preparing a will and not considering other components of a comprehensive estate plan. Another common mistake is not signing the will properly or having witnesses who are beneficiaries. Failing to dispose of all property and not updating the will regularly are also common mistakes. It is important to note that some online will makers may not provide adequate guidance on how to properly draft and execute a will, which can lead to errors or omissions in the document. It is recommended to consult with a legal professional for guidance on how to properly draft and execute a will.
The importance of accounting when administering an estate
The requirements for maintaining accurate estate accounts include keeping complete and accurate records of each step of the administration of the estate. Lawyers who have control over an estate must maintain complete and accurate accounts of the assets under their administration. Detailed and accurate ledgers of all transactions should be kept. Agents acting under a power of attorney for property documents must keep accounting records that include a copy of the power of attorney for property documents, any management plans in place, and court orders. Executors need to close any estate accounts that were opened and assemble all receipts and records received throughout the settlement process. They should retain receipts from all transactions related to the estate.
