signing

The requirements for signing a Will to make it a legal document are actually quite simple. Your document must be signed in the presence of two witnesses who are not beneficiaries in the Will. Some provinces also include the spouses of beneficiaries as invalid witnesses. In general we recommend that the witnesses can have nothing to gain from the contents of the Will. The document should also be initialled on each page. There is no requirement to have the document notarized to make it a legal Last Will and Testament.

Signing your Will – simple rules for Canada

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.

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.

Guide to Signing a Will
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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.[1] 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,[2] 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. However, due to the COVID pandemic, 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, 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?

Your Will does not need to be stamped or notarized by a legal professional in order to be valid. However, 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?”[3]. 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 $49.95 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.

[1] https://www.legalwills.ca/mywill

[2] https://www.legalwills.ca/mywill

[3] https://www.legalwills.ca/blog/affidavit-of-execution/

The Canada Will Registry

We receive a call almost daily that sounds something like:

“My father has recently died. We know he had a Will, but we can’t find it. What can we do?”

The simple answer is, keep looking. If you die, and nobody can find your Will, the result is exactly the same as dying without a Will. It is called “dying intestate” and your estate will be distributed according to Provincial laws.

All of the time (and money) that you put into preparing your Will counts for nothing if nobody can find it.

Canada Will Registry

Will Registry in Canada

There are some confusing aspects of Will Registration to clear up first.

Every Will in Canada is registered after it is probated. Most Wills in Canada are probated, but this happens after you have died. If you are looking for the Will of somebody who has died, then you can usually find the Will with an application to the local probate courts.

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A Power of Attorney – The complete Canadian guide.

A Financial Power of Attorney appoints somebody to take care of your financial affairs while you are alive, but usually after you have lost capacity.

This document should not be confused with either a Last Will and Testament (or simply a “Will”) or a Living Will.

A Last Will and Testament makes key appointments and describes the distribution of your estate after you have died.

A Living Will is a document that is also in effect while you are alive, but deals only with your health condition and medical treatment. It usually combines the naming of a Healthcare Proxy with an expression of the type of treatment you wish to receive through an Advance Directive.

Together, these three documents make up a complete Estate Plan in Canada.

Power of Attorney
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What types of Power of Attorney are there?

The first classification is the Power of Attorney that directs your medical needs; a Healthcare Power of Attorney. Also known as a Healthcare proxy. In this document, you name a person to make medical decisions on your behalf. Most people when they talk about a Power of Attorney are not meaning a Healthcare document.

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The Ultimate Guide to Preparing a Will – 2024

Introduction to Preparing 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). If you do not feel that you have significant assets now, remember that your Will only comes into effect when you die, not now, and you cannot possibly predict how large your estate will be when your Will is required. Preparing a Will is one of the most important tasks you can undertake if you have loved ones. Sadly, most of us put it off until it is too late.

By law, any competent adult can make their own legal Will; the law does not require you to have an attorney or a lawyer, 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.

Guide to Preparing a Will

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The specific grounds to challenge a Will in Canada

How to Contest or Challenge a Will

For many of us the loss of a family member is a very upsetting and stressful time, and we are not always thinking clearly during this emotional state. As a result, there are often times when an estate is distributed but some beneficiaries feel that it has not been done in accordance with the Will or that they have still missed out in some way. This isn’t uncommon and as any estate lawyer will tell you, a large part of their work involves resolving estate disputes between family members and other beneficiaries.

But if you are tempted to challenge a Will, be aware that there are specific reasons why you can challenge a Will. Although you may feel cheated, this may not alone be sufficient grounds for contesting a Will.

Some General Considerations

If you believe that you have not received a sufficient benefit under a Will and you fit certain criteria, you may be able to challenge a Will. Contesting a Will means applying to the court to have the Will, or parts of the Will, deemed invalid. While there may be a good reason you were left out, there may also be other possibilities.

Since contesting a Will is expensive and time-consuming, it is a good idea to get legal advice before you proceed. In addition, contesting a Will requires formal steps and procedures, and will only be successful if you can provide evidence to support your claim. Because the maker of the Will is deceased, any statements that you allege the deceased said, must be corroborated or confirmed by a witness. Depending on the jurisdiction, you may have to go to mediation and try to resolve the issues.  If the case is not settled at mediation, it will then go to trial.
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The Affidavit of Execution and signing your Will. What makes a Will legal?

One of the most common misconceptions associated with writing your own Will is around the signing process. We answer this question ten times a day, so I thought I would provide some explanation. Many of you may have heard of an Affidavit of Execution, but you may be unsure of what it is, and what role it plays in authenticating your Will.

 

Writing your own Will – is it legal?

There are generally speaking three approaches to writing your Will.

1. Working with an estate planning lawyer or Will writer.

In some Canadian provinces (particularly BC and Québec) Notary Publics also have the authority to prepare a Will for you. Writing your Will with a lawyer or notary gives you a good chance of getting a quality Last Will and Testament (but not a guarantee!!). The downside of course is that it is often expensive, and certainly inconvenient to arrange an appointment with a lawyer. Even if you managed to write your Will, you probably wouldn’t make the time to update it to reflect any changes in your circumstances. The time and money barriers are so significant, that in a recent survey we found that 62 percent of Canadians didn’t have a Will. Of those that did, 12 percent were out of date. Continue reading →

Before you make a Will – some definitions for non-lawyers

Writing your Will can be a very simple process, but because it is only done a few times in your life, it can be intimidating. It can seem daunting because there are so many unfamiliar terms used in the estate planning world. Expressions that are second nature to the legal community, but are not in everyday use for the rest of us. Before you make a Will, it is important to familiarize yourself with some of the more common expressions.

Just because the terms are unfamiliar, they are not complicated concepts. In this article we will explain a few of the words that you will need to know before you make a Will. We hope that we can demystified the process a little.

Mke a Will

 

Intestate

The term intestate is typical of much of the legal language in that it is derived from Latin, and in today’s World it means that you have died without a Will. Continue reading →

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Customer question of the day: How to Register a Will

Register a WillWe get this question a lot. “Once I have prepared my Last Will and Testament, and signed it in the presence of two witnesses, what do I do with it to make it legal? How do I register a Will?”

When do you register a Will?

In Canada, there is no way to register a Will until after you have died, and at this time, the Will is registered with the probate courts. In some Provinces, like British Columbia, you are able to register the location of your Will for a fee, with the department of vital statistics. British Columbia is the only Province to offer this.

There is also a private company called Notice Connect working to establish a nationwide centralized registry of Wills. We do partner with Notice Connect who offer free Will registration for LegalWills.ca customers. Again, at the Canada Will Registry you register the location of your Will, they do not store the document itself.

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