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Fundamentals – Will DIY 1/7

Starting today, we will delve into a series of topics around will-making. This series will consist of seven blog articles, this is the first one.

The use of the information of this website is not a substitute for seeking legal advice. The purpose of the blog articles is to help you prepare your own Will. If you require legal advice or information, you should obtain such legal advice from a licenced lawyer. 

Everybody should have a Will. Not making a Will is unfair to those you leave behind. Even if your plans for estate distribution are simple and you do not have many assets, it is still much easier for the people that you leave behind to work with a Will than to resolve the estate of a person who has died “intestate” (without a Will).

Everybody should have a Will. Not making a Will is unfair to those you leave behind. Even if your plans for estate distribution are simple and you do not have many assets, it is still much easier for the people that you leave behind to work with a Will than to resolve the estate of a person who has died “intestate” (without a Will).

By law, any competent adult can make their own legal Will. The law does not require you to have an attorney to do this. A Will does not need to be a complicated document; it simply has to clearly state your wishes for the distribution of your estate.

Note that DIY wills are not appropriate for people with complex situations, including, but not limited to the following:

  • If you are involved in a matrimonial dispute, or wish to disinherit your spouse or children
  • If you have a history of mental illness, or the question of your mental capacity may be raised in objection to the statements in the Will
  • If you own personal property or real estate in multiple countries
  • If you are under the age of adulthood
  • If you have complicated business investments (e.g. you are a part owner of property or businesses where ownership may be challenged)
  • If you are about to be married and are preparing a Will in contemplation of that marriage
  • If you have a large, complex estate and feel that you would benefit from some advice on estate planning and tax reduction
  • If you own a farm in Canada, as there may be significant estate planning implications
  • If you need to provide for long term medical care for a dependent
  • If you have any litigation pending which involves large sums of money or where a prison term is possible
  • If you think that somebody may challenge your Will in court or you have any other doubts about your situation
  • If you are a resident of Quebec, Canada

What You Need to Know about a Will

A Will (or Last Will and Testament) is a legal document prepared during your lifetime, which describes how your money, property and other assets are to be distributed when you die. A Will can also include provisions for setting up “trusts” for children(money they receive later based on their age) and the custody or guardianship of those children (who you wish to take care of them after you pasS away).

A Will does not have to follow any special structure to be a legal document and no special legal words are required. As long as you clearly state your instructions and sign the document appropriately, thenit will serve as a legal Will. Standard legal clauses are often used in a Will, because they are known to work and not be open to misinterpretation.

A Will should not be confused with a “Living Will’, which is an entirely different type of document. A Living Will is in effect while you are still alive. It describes your wishes for health careshould you end up in a terminal condition or be unable to speak for yourself.

Here are a few common reasons that people claim when justifying why there is no point in writing a Will:

  • “I don’t really care who gets my estate. I’Il be gone anyway.”
    • Without a Will, your property may not go to the people that you wish to benefit. In Canada, there is a law that decides how property should be distributed if a person dies “intestate” (without a Will).
    • The actual administration of your estate will also be complicated and difficult. The courts will usually decide who will act as a personal representative or “Executor” for distributing your possessions and the laws in your local jurisdiction will determine who will get what. This may lead to acrimonious legal disputes between your survivors.
    • Note that if you have no heirs, all of your assets, property and possessions can government. The effort required to draft your Will is insignificant compared to the difficulties that dying without a Will presents to your survivors.
  • “It’s obvious who will get my estate. It will go to my spouse.”
    • Local laws will determine who will receive your possessions, which may or may not reflect your intentions. If you die without a Will and you are married, your assets will not automatically go to your surviving spouse. Local laws may determine that others, including children, may be entitled to a share. determined by the laws of “Intestate Succession” in your Province/Territory, and can frequently lead to messy legal cases.
  • “I don’t have an estate of any value.”
    • Even if you don’t believe that you have an estate of any value, your death itself may generate a sizeable benefit. For example, your beneficiaries may be entitled to the proceeds of a life insurance claim, a wrongful death suit, or a claim in the event of some negligence resulting in your death. These can be significant sums of money.
    • Quite clearly, there is unnecessary. You should draft a Will while you are still young and healthy, even if you don’t feel that your assets are substantial. There is absolutely no benefit to waiting until you are older.
    • Whatever your reason may be, you should know that it is extremely important that you have an up to date Will. If you die without a Will, the courts will decide how your estate is distributed, and this may not be in the best interests of your loved ones. It is impossible for us to know how your estate will be distributed, but we do know that if you have a Will, then the decisions are in your hands.
    • To die without a Will is irresponsible and places a tremendous burden on your survivors. 

A Will only comes into effect at the moment of death. You are free to do anything with your assets all the time that you are alive even if you have included those assets in your Will.

For example, if you plan to leave your Dodge truck to your brother, and then subsequently sell the truck, your brother will get nothing (the bequest is said to be “adeemed”). However, if you sell that truck and buy a new Dodge truck, then the new truck would go to your brother, as long as it fitted the description in the Will (you have “restored the adeemed property”).

There is no legal requirement to have a lawyer prepare your Will. In many cases, there is no practical need for a lawyer to be involved in the preparation of your Will, particularly if your family situation and plans for estate distribution are straightforward. However, if you belong to any of the groups described in the above “when should you not DIY your will”, should seriously consider consulting with a lawyer.

The people you leave behind will have two problems: nobody will have been appointed as the Executor of your estate, and you will not have expressed your wishes for how your estate should be distributed. The courts will appoint an administrator of your estate, and the courts will determine who will receive what parts of your estate. The whole process could take a very long time and there is a good chance that the courts’ directions will not match your wishes.

Throughout your life, you are free to update your Will as often as you like, either by making an amendment, or by drafting a new Will. An amendment to an existing will is called a “codicil” and must follow the same form and structure of a full Will (i.e. it must be properly signed and witnessed). Consequently, writing a codicil is not usually much of a shortcut. In fact, it can lead to significant confusion.

It is strongly recommended that if you wish to make changes to your Will, that you create a new Will, and revoke and destroy all previous Wills. Never make handwritten amendments to your printed Will.

Not updating a Will can be as bad as not having a Will at all. Even if you feel that there have not been many changes in your life, your Will should be reviewed every year on a routine basis.

Beyond the routine reviews of your Will, you should consider updating your Will in the following circumstances:

  • If somebody named in your Will dies
  • If a major asset is purchased or sold
  • If you remarry, separate, divorce or cohabit
  • If you move to a new province or country
  • If your Executor or alternate Executor no longer wishes to serve
  • If any new children are born, adopted, or pass away
  • If any person named in your Will becomes seriously ill
  • If your children reach the age of majority
  • If you wish to change some beneficiaries
  • If you wish to redistribute your property in a different way

A will is automatically revoked under the following circumstances:

  • Marriage in Ontario (Note: the law regarding this has recently changed, and Wills now remain valid after marriage).
  • If you create a new Will that specifically revokes previous Wills
  • If you destroy your Will with the intent of revoking it

Divorce does not revoke a Will; it only cancels the portions of the Will related to your ex-spouse.

Preparing the Will

The Will has the following structure:

  • It identifies the person making the Will (you), otherwise known as the “testator”.
  • It revokes ( cancels) all previous Wills, to make it clear that this Will replaces any earlier Wills you may have made.
  • It names the personal representative, called the “Executor”, for your Will. This is the person who will be responsible for distributing your “estate” (property) according to the wishes outlined in your Will.
  • It leaves all of your property to your Executor “in trust”. The Executor, as the trustee of the estate, is given ownership of all of the property in your estate after you die, but must distribute the property according to the instructions in your Will.
  • It instructs the Executor to pay all valid debts, expenses, claims and taxes on your estate.
  • It tells the Executor to give your beneficiaries whatever is left in the estate after the debts, expenses, claims and taxes have been paid.
  • It gives the Executor certain legal and financial powers to manage your estate, including power to keep or sell property in the estate, to invest cash, and to borrow money.
  • It names one or more people who should take custody of any minor childre

A joint Will is a single document, signed by “co-testators” (usually spouses), intended to reflect the wishes of both parties. This is generally considered to be an extremely bad idea, and probably worse than having no Will at all. Often, the intent of a joint Will is to declare that each person would leave everything to the surviving partner, and in the event that both partners are victims of a common disaster, everything would go to their children. The problem is that it is unclear whether a surviving partner can revoke a joint Will and many messy legal cases have arisen as a result of this confusion.

In short, do not make a joint Will, as there could be problems if either party changes their mind or wishes to amend the Will. There may also be problems if the surviving spouse tries to make any changes to a joint Will, as they may be bound to the original terms. Furthermore, there is no reason to create a joint Will, as there is no disadvantage to drawing up a separate Will for each partner.

Yes. Your Executor has a legal responsibility to treat all beneficiaries fairly under the directions given in your Will. There S nothing preventing your Executor from being a beneficiary of your estate, unless there is a danger that they may not treat all beneficiaries equally.

In fact, for a simple distribution of the estate, where most of the estate is passing to a single beneficiary, it is common for that beneficiary to also be named as the Executor of the Wil. For people who are married, the first choice Executor is ofter to be their spouse. 

You may wish to donate your body or organs after you have died. However, these instructions should not be written into your Wil. Feel free to write and sign a separate document that expresses your wishes for organ and body donation and keep these instructions with your Will, but do not attach them to your Will or include the instructions in the content of your Will. They are not legally binding instructions and are not by law regarded in the same way as your wishes for the distribution of your estate.

It is not a good idea to include funeral instructions in your Will. Usually, your funeral will happen within a few days of your death, and possibly even before your Will has been located and reviewed. You can write out your funeral wishes as a separate document, sign this document, and keep it with your Will, but do not attach it to your Will.

For each item that you are leaving to a specific beneficiary, you should provide an accurate description. This item might be a specific item of jewellery, or a house, or a sum of money. It doesn’t really matter what it is, just that it must be very clearly identified and it must be your property.

The next step is to name the beneficiary. Make sure that the name you provide uniquely identifies the individual (not just “John” or “my cousin”). You should also incude the beneficiary’s current residential address.

Don’t be intimidated by this section, as long as you clearly state your intentions, your wishes will be enforced. Even if you name a person, and they subsequently change their name, as long as they are identifiable as your intended beneficiary and everybody knows to whom you are refering, then you do not need to update your Will.

You must be completely explicit in your wording. A phrase like “divide my estate equally between my cousins and my friend Bil” has at least five different interpretations.

For each bequest, you should name an alternate beneficiary in the event that your first choice beneficiary does not survive you. You do not need to name an alternate, but it is usually a good idea. If you do not have an alternate, and your first choice beneficiary cannot receive the bequest, then the property will go to your “residual” beneficiary, described later in this guide. 

For every bequest made in a Wil, it is important to include an “alternate provision”. The purpose is to explain what will happen if your first intention cannot be fulfilled for whatever reason. For example, if you state in your Will that your cottage should go to your daughter, you should make an alternate provision just in case your daughter pre-deceases you, or you are both involved in the same accident.

There are examples of this in the sample Will which is included in the kit.

It is very important for you to include in your Will a plan for everything in your estate. Your Executor needs to know your intentions for all of your possessions, and you have to assume that your first intention cannot always be fulfilled.

In order to catch all of the assets that cannot be distributed according to your wishes, every Will must have a “Residue” clause. This clause is written by you, and specifies how you wish to distribute the “residual” or remainder of your estate.

If any of your beneficiaries pre-decease you (and no alternate is named or available) then the possessions they would have received will become part of your residual estate. Furthermore, any items that you have not explicitly named in your Will also become part of your residual estate.

In many cases, the residual beneficiary will be the main beneficiary of the estate, for example, if you leave your car to your son, and ‘everything else” to your spouse, then your spouse will be the main beneficiary and also the residual beneficiary.

It is always a good idea to make sure that all eventualities are accounted for in your Will. This clause allows you to make provisions in case your residue clause cannot be fulfilled.

In this section, you have an opportunity to express what will happen if any part of your residual plan cannot be done; for example, if one of your residual beneficiaries pre-deceases you. 

Beneficiaries are the individuals that you name in your Will to receive a share of your estate, including any specific possessions.

When you name them in your Will, it is important to identify them so that your intentions cannot be misinterpreted. You should include their full name and full address so that your Executor can clearly identify them. If the beneficiary predeceases you ( dies before you), the item will go to the alternate beneficiary, if you have specified one, or to the residual beneficiary.

By law, you cannot leave cash or property directly to a minor. You must leave the bequest “in trust”, and a trust will be set up for the benefit of the minor. You can also set up this type of property management for any other beneficiary who is still young and may not be mature enough to accept a large bequest.

A “trust” is a legal arrangement in which you pass the ownership of property to a “trustee” who will manage that property for the benefit of another person or organization (the “beneficiary). The trustee is the “legal owner” of the property, but the beneficiary is regarded as the “beneficial owner” of the property. 

The key concept of a trust is that the beneficiary cannot access any of the property, other than what is distributed by the trustee.

When including a trust as part of your Will, you are creating a “testamentary trust”, as it will only come into effect after your death.

By Canadian law you, must now provide for people who are dependent on you for support, your spouse, and people for whom you have promised to provide.

Although you must, by law, provide for dependents incuding a spouse and minor children, you are still free to leave out other people who may expect to receive something. These people include friends, relatives, and adult children, as long as you are not currerntly providing for them.

In many cases it is a good idea to explain exactly why you are not including them in the distribution of your estate (e.g. you already gave them a loan, you disapprove of some of their actions or beliefs, they are independently wealthy, etc.). If you do not explain why they have been disinherited, they may make a claim against your Will on the basis of you not being of sound mind at the time of writing. If such a case is won in court, then your Will is likely to be invalidated and your estate will be distributed according to the “Laws of Succession” in your province. 

A “personal guardian” will take legal responsibility for minors in the event of the death of the parents. When you appoint a personal guardian in your Will, you are expressing your preference for who you would like to raise your children.

This may be an emotional decision, but it is very important to Cover this possibility, even if there are currently two living parents. It is not uncommon for both parents to be lost due to a common disaster. If you are the sole custodial parent, it is absolutely vital that you state clearly who you would like to take responsibility for your children should you die.

Glossary of Legal Terms

A person or organízation that receives sometthing from your Will. They “benefit” from the distribution of your estate.

A gift of money or other property identified within a Will or trust. Any item that you leave to another person is a “bequest” and the person receiving this item is called a “beneficiary”.

An amendment that allows you to alter the contents of your Will. This document must be signed & witnessed in the same way as the original Will.

All of your property, possessions, money, and other assets that you leave behind after you pass away. Everything that you own becomes your “estate”, which is then distributed according to the directions in your Will.

Also known as a “Personal Representative” or “Trustee”, this is the person named in your Will who takes responsibility for gathering up the contents of your estate and distributing it according to the directions in your Willl.

The term used to describe a person who dies without a valid Will. If this happens, the courts will decide how the person’s estate will be distributed.

Any property or money given by a Will.

A document which describes your wishes for health care should you end up In a terminal condition or be unable to speak for yourself.

A child who has not yet reached the age of majority (age 18 or 19 depending on the Province or Territory). A minor cannot inherit anything from a Will unless it Is put into “Trust”.

Another term for “executor”.

The legal process which is followed after your death, during which your Will is legally approved by the courts under Provincial/Territorial legislation.

Any assets remaining after the debts, taxes, liabilities and all specific bequests in your Will have been distríbuted.

To cancel a Will.

The person making the Wil.

Funds which are left to people who are not able to receive the funds directly. They are administered by the Executor or Trustee until the Trust expires.

Final Important Note

Although this series focuses on DIY will-making, if your personal circumstances, family situation, and/or asset structure are complex, we recommend seeking assistance from a licensed solicitor specializing in wills and estates.