Fifty-five percent of the people who use the Will writing service at LegalWills.ca describe themselves as married, a further eleven percent are in a common-law relationship. In most cases, these people are preparing their Wills as a couple. Looking for a “couple’s Will”. In this post we want to break down exactly what is meant by a Couple’s Will, and the steps involved in creating Wills for two people when using the service at LegalWills.ca
How can I prepare a Will in Canada?
Let us start by discussing the different ways to prepare a Last Will and Testament in Canada which boils down to essentially three approaches:
- You can write your own using a blank sheet of paper, or a blank form Will kit. This is the cheapest approach, but the most likely to give you an inadequate document. You really can write your Will on the back of a napkin, and this is legal across Canada. In fact, if the note is all in your own handwriting, many Provinces (with the notable exception of British Columbia) do not even require witnesses to sign the document. This is called a “holographic Will”. However, it is actually quite difficult to write a well-drafted Will if you have no legal training.
- You can write your Will by working with a legal professional, usually a lawyer, but in BC and Québec, this could be a Notary (or a Notaire in Québec). The advantage of taking this approach is that if you have questions related to the law, and how it applies to your situation, you can ask the legal professional for legal advice, and they will be able to draw upon their legal training and provide this advice. The disadvantage is that it is by far the most expensive approach (anything from about $400 to $800 for a simple Will) and the most inconvenient, particularly for couples. You will generally be required to co-ordinate your schedules to make at least two visits to the lawyer’s office: one for the initial consultation, and one to review and sign the document.
- You can prepare your Will using an online interactive service, or software. Rather like using tax preparation software to write your taxes, these services guide you through the process, step-by-step by asking a series of questions. At the end, the document is compiled, and must then be downloaded, printed and signed in the presence of two witnesses in order to make it a legal Last Will and Testament. The service at LegalWills.ca is exactly this approach. More and more people are taking this approach to Will writing because it is both convenient (you can prepare the Will from the comfort of your home) and affordable (the cost of a Will at LegalWills.ca is $39.95).
The Joint Will vs the Mirror Will
One of the most common requests that we receive from couples intending to prepare their Will is a single document covering the two people. There is a misconception that a couple share all of their assets, and so one Will would work for both – that is, a “Joint Will“, a single document serving the needs of two people. Many people regard the terms “couple’s Will” and “joint Will” as interchangeable.
Joint Wills used to be prepared back in the days before computers and printers. The main benefit was that it saved the effort of typing and then re-typing very similar documents.
Joint Wills were also prepared back during a time when family property was considered to be owned by the family patriarch. Particularly when there was a single “breadwinner” in the home, there used to be a sense that the wife or mother didn’t own property outright. But today, we understand that both partners have equal rights to all property including shared property. So each partner needs their own Will.
The most common scenario is for a couple to name each other as their main beneficiary in their own Will. Then for each Will to have an “alternate” backup plan in case the two partners are both involved in a common accident. If neither partner survives the other, then the estate is distributed according to the alternate distribution plan.
The creation of two Wills, naming each other as the main beneficiary, is what is know as creating “Mirror Wills” because the two documents effectively mirror each other.
However, Mirror Wills are a loose concept, the two documents are not legally tied to each other, they are not fixed and each document can be updated independently of each other. In fact, the two documents do not need to mirror each other exactly at all.
When you create Mirror Wills, you are naming each other as your main beneficiary, but it is fine for each of you to have your own interests within your distribution plans.
For example, you each may have your own charities that you wish to acknowledge in your Will. It is very common for a couple to have their own charitable interests.
You may also each have individual assets that you wish to leave to particular family members. For example, one of you may want to leave your guitar to your nephew. Or you may wish to leave $5,000 to your brother. These individual bequests are perfectly fine, even when your documents are considered to be “Mirror Wills”.
Couple’s Wills rely on what is known as the “survivorship clause”. This means that if your partner survives you by thirty days, then they will be the main beneficiary of your estate. Almost all Wills, including those at LegalWills.ca include the requirement for a beneficiary to survive you by 30 days in order to receive their bequest.
The reason for this is to cover a scenario where you are both involved in a common accident.
For example, if you were both involved in the same car accident. You were both rushed to hospital, but your partner survived for a day longer than you. Without the survivorship clause, your entire estate would pass to your partner, and then a day later, everything would be distributed according to their distribution plan.
In this scenario, the more appropriate outcome is for your estate to be distributed according to your alternate distribution plan, and your spouse’s estate to be distributed according to their alternate distribution plan.
Alternate Distribution Plans
Although your Mirror Wills are set up to name each other as your main beneficiaries. You must create an alternate plan in case you are both involved in a common accident.
This alternate plan is not limited to simply naming a single alternate beneficiary. You can create specific bequests, have an alternate main beneficiary, or just describe a completely different plan altogether including describing charitable bequests.
Often for couples with children, the alternate plan in Couple’s Wills simply leaves the entire estate divided in equal shares between the children. And this alternate plan is exactly the same in both Wills.
But there is absolutely no requirement to create an identical alternate plan. We see this particularly for couples who do not have children. The alternate plans include charities and siblings are are usually completely different to each other.
Naming an Executor in Mirror Wills
Your Executor is the person with the responsibility to carry out the instructions in your Will. If you write your Will with a lawyer, the lawyer will often recommend that they take on that role.
However, if you write your Will using a service like LegalWills.ca, you are probably more likely to name a friend or family member. In fact, often people name their spouse as their Executor.
This would mean that for Couple’s Wills, you would name each other as the Executor, but again, a backup would be named in case you are both involved in a common accident.
It makes sense to co-ordinate the appointments of backup Executors, so that both of you name the same person. They will then be able to work on your joint estate and distribute the complete set of assets according to your respective alternate distribution plans.
If you name different alternate Executors, they will definitely have to work together to manage your joint assets.
Guardianship for children in a couple’s Will.
Wills also allow you to name guardians for your children. This guardianship appointment will be made if both parents are unavailable – you are a single parent, or both parents are involved in a common accident.
What actually happens is that your minor children are placed in the care of guardians, and that appointment is made by a judge. The judge takes into account many factors, but the overwhelming influence on the decision is any appointment that has been made in the parent’s Will.
It therefore makes sense to co-ordinate this naming of the guardian in both Wills. It is not very helpful to a judge is each parent names a different guardian in their respective Wills.
The guardian named in the Will is not the only factor in the judge’s decision. Much can happen between the writing of the Will and the guardianship coming into effect. But it is certainly helpful to provide the judge with the parent’s preferences.
Creating a Couple’s Will at LegalWills.ca
At LegalWills.ca each individual needs their own account. So there are a few steps to preparing your Wills.
The first step is for one person to work their way through our Will service. There are ten sections which guide you through the process for preparing your Will. These section include family information, key appointments, and the distribution of your estate.
The whole process takes around 20 minutes to complete. At any point, the work can be saved, and if you wish, you can order the Will service. It will then be added to your account.
The document can then be downloaded and printed. At which point it can be signed in the presence of two witnesses.
Creating the Mirror Will
LegalWills.ca has a unique proprietary service that allows you to move data from one account to the other to create a Mirror Will. This saves the effort of re-typing information like names of children and grandchildren.
What makes this feature particularly powerful is that the Wills are in no way locked once they are created. Each Will stands alone as an independent document. The document can initially be created extremely quickly, but can be refined over time.
A second account will be set up through this process. Your spouse can then create their own Will in just a few minutes with a quick check, some tweaks, and maybe some refinements in the distribution plan.
The cost to prepare a Couple’s Will at LegalWills.ca
The Will service at LegalWills.ca costs $39.95. This allows you to prepare a document which, when signed and witnessed, becomes a legally binding Last Will and Testament. There is no additional cost, as steps like Notarizing and Registering the document are entirely optional.
The $39.95 fee allows you to make unlimited updates to the document for one year. At the end of that year, you can choose whether or not to maintain the account, if you think you may need to make changes in the future.
There is no automatic subscription, and nothing to cancel. We do not keep credit card details on file.
The second document is discounted by 40 percent, so costs just $23.97. This means that the pair of documents – the couple’s Will can be created for $63.92.
With this in mind, we would recommend getting started today. You do not have to complete the process in one sitting. You can take a long as you wish, but you do need to get started. Just go to the Will service at www.legalwills.ca/mywill to get started.
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