Many Canadians think that making a Will means meeting with a legal professional and paying expensive fees. Although someone with a large or complex estate might wish to consult with lawyers, accountants, or tax specialists, for most Canadians this is completely unnecessary. A lawyer can give you legal advice if you need an interpretation of the laws. But most people do not need legal advice when preparing a Will.
Did you know that when you pay a lawyer to prepare your Will, the rate they charge is based on their years of experience, not on the document that is being delivered to you. That is why many people leave a lawyer’s office a bit bemused, wondering why the 5 sheets of paper in their hand cost them $800 or more.
A Will is simply a legal document that sets out how you wish your estate, which includes all your possessions, property, other assets and liabilities, to be distributed after you have died.
It is perfectly legal to write your own Will in Canada. You do not need to consult a lawyer, paralegal or notary public to make a valid Will. Using an online, interactive Will writing service like LegalWills.ca, it is actually possible to create a comprehensive Will at a fraction of the cost of retaining a lawyer. Just answer a short series of simple questions online, and LegalWills.ca generates a document that you can sign to create your binding, valid Will.
So, What Makes a Will Legal in Canada?
Although provincial laws vary, there are generally only a handful of requirements that must be followed to create a legal Will in Canada:
- The testator (person making the Will) must be of the age of majority (18 or 19 depending on the Province)
- The testator must have the necessary “Testamentary Capacity” to make a Will;
- The Will must be signed with two witnesses present, who both sign to confirm they have witnessed your signature; and
- The two witnesses must be valid.
The LegalWills.ca service walks you through a series of simple, easy to follow questions, so you can build your own Will with zero legal expertise. Once you have answered the questions, we automatically and instantly generate a document that forms the basis of a legal Will in your jurisdiction. If you live in Canada, this document can be printed and signed in front of witnesses to become your legally binding Will.
What is Testamentary Capacity?
A person making and signing a Will must have the necessary capacity, or mental ability, to legally make a Will. This means that they:
- Understand the nature and effect of the Will. They don’t need to understand every single legal word in the Will, but they must understand that it is their Will, and understand what effect the Will would have;
- Can recall the nature and extent of their property and assets;
- Understand what is being given to their beneficiaries in the Will;
- Can recall the persons that they might wish to name as beneficiaries in the Will; and
- Understand the potential consequences of choosing to “disinherit” (by not naming in the Will) certain friends, relatives or adult children.
Before signing, you should read through the printed Will thoroughly and make sure that it accurately reflects your wishes. Any Will drafted using LegalWills.ca includes unlimited updates free of charge, as long as you are a member, so it is always possible to make revisions.
How Must the Will be Signed?
Once you have printed your document from LegalWills.ca, it must be signed in the presence of two adult witnesses. Each witness must also sign the document in the presence of each other to confirm that they have witnessed your signature. It is important to make sure the Will is signed in the correct order: the signature by the testator must be completed before either witness signs the document.
The testator should verbally explain that they have gathered the witnesses to witness the signing of their Will. There is no need for the witnesses to read the Will or know its contents, they are only required to witness the Testator’s (and each other’s) signatures. Your Will is a private document, and many people use a blank sheet of paper as a covering page to protect the privacy of its contents.
All three of you must be present until the process is complete.
New Rules for Will Signing During COVID Pandemic
Historically, it was required that the testator and both witnesses be together in the same room. Due to the COVID pandemic, however, it became difficult to have three individuals present together, especially if the testator was an older person. Wills may now be signed and witnessed remotely using video conferencing software.
The testator and their two witnesses must be able to see, hear and speak to each other in real time. Some provinces have introduced additional rules to safeguard the remote witnessing process. For example, in Ontario, when if you choose to virtually sign your document, one of the two witnesses must be a member in good standing of the Law Society of Ontario (either a licensed lawyer or paralegal).
Ultimately, this doesn’t make the virtual witnessing a very useful option for most people.
The testator should begin by initialling each page, in the bottom corner, and then sign their full legal name on the last page. All of this must be done in view of both witnesses. Next, each witness should, in turn, initial each page of their copy, and sign the last page. Each witness should write their address, and legibly print their full name, after their signature.
Each person must have a complete, identical copy of the Will, and the documents together will constitute the legal Will.
What Witnesses Are Valid?
There are some restrictions on who is permitted to witness the signing of a Will. Firstly, your witnesses must be over the age of majority in your province, usually 18 years old. Your witnesses cannot be one of the beneficiaries designated in the Will or their spouse. Where a person who might benefit under the Will has witnessed its signing, any bequests to that person may be invalid. We recommend that your witnesses both be non-family members who have nothing to gain whatsoever from your Will, such as friends, co-workers, or neighbours.
It is important to note that if a witness is a beneficiary, it doesn’t actually invalidate the whole Will. But a witness cannot receive anything, so that particular bequest will be invalid. It’s not something that you want to test though, and it’s best to find people who have no interest whatsoever in the Will.
As noted above, when remotely witnessing a Will there may be additional requirements for witnesses, for example in Ontario one of the witnesses must be a licensed lawyer or paralegal.
What is an Affidavit of Execution? Do You Need One?
Although your Will does not need to be stamped or notarized by a legal professional in order to be valid, you may wish to ask your witnesses to sign what is called an “Affidavit of Execution”. The purpose of this Affidavit is to smooth out any issues that might arise when your executor applies for probate. By proactively signing an Affidavit of Execution, your witnesses are swearing that there were no concerns about the signing process.
As part of the LegalWills.ca service, we provide a free download of an Affidavit of Execution template. This document must be signed by your witnesses in front of a Commissioner for Oaths or a lawyer, which can often be done for as little as $25. For more details about the Affidavit of Execution, see our article “The Affidavit of Execution and signing your Will. What makes a Will legal?”. A Notarized Affidavit of Execution however is not required to make your document legal. Some people simply don’t have access to a lawyer or notary, and they still have a legal right to prepare their Will. Having your document Notarized does not make it any more legal. However, if you feel that your Will may be challenged on the basis of you not having capacity, or that you were unduly influenced, it might be a good idea to have your witnesses sign an Affidavit.
Create and Print Your Will Today
For most Canadians, drafting a legal and binding Will does not need to be expensive, and does not need to involve lawyers. Using LegalWills.ca, it will take you 20-30 minutes to prepare your draft Will, at a starting price of $39.95 plus applicable taxes. Our “wizard” will guide you through ten sections, prompting you to answer questions in everyday language. Zero legal expertise is required. Once your Will is completed, LegalWills.ca provides detailed instructions about how to print and sign your Will.
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