Ten myths about a Canadian Last Will and Testament

Having watched families fight over the estate and end up not speaking to each other for the rest of their lives, I can tell you first hand that leaving this world without making a plan for what’s in your estate is one of the worst thing you could do for your loved ones.

Over the Thanksgiving weekend, the CBC led their business section with an article on writing a Canadian Last Will and Testament and suggested that you should discuss with your children exactly how you were planning to divide your estate.

 

There were some great comments on the article from people who were living the nightmare of administering an estate, some estates had a Will involved and some didn’t. Problems arose with children fighting over particular bequests, Executors were not following the legal procedures, aged parents were being forced to change their Wills in the advanced years. What struck me though was the level of misunderstanding of estate planning law from the general public. In a total of 200 comments, I have picked out 10 terrible misconceptions that people have taken the time to submit in response to the article. The lesson here is do not take legal advice from a comment forum.

1. “Modern Wills cover physical/health issues as well as financial ones”

This is absolutely not true. A Canadian Last Will and Testament comes into effect only at the moment you die. It serves absolutely no purpose while you are alive, so while it could potentially include instructions for your burial and funeral, it absolutely cannot include healthcare instructions. We actually do not recommend that you include funeral wishes in your Last Will and Testament, and they are technically not legally binding. We offer an entirely separate service for documenting your funeral wishes, and the document can be stored with your Will. For any healthcare instructions, you need a Healthcare Power of Attorney or “Living Will“. The first of these allows you to name a person to make healthcare decisions on your behalf while you are alive but unable to express your own desires for healthcare. The Living Will allows you to pro-actively make some of these healthcare decisions.

2. “Without a will the government would seize all the possessions”

Although we encourage everybody to write their Will, it is wrong to suggest that the government will take all of your possessions if you do not have one. Assets are frozen, that much is true, but the estate is then distributed according the intestate laws of the Province. Only in very unusual circumstances when there are no immediate or extended family members surviving, would the estate go to the government. The process is certainly much easier with a Will, but it is unlikely that the government will take all of your possessions if you do not have a Last Will and Testament in place.

3. “A useful iPhone/ipad/Android app to designate beneficiaries of family heirlooms is xxxx”

Currently in Canada, the only way to designate a beneficiary for anything is by using a printed, signed and witnessed Last Will and Testament. Any online service, or mobile app that claims to allow you to name a beneficiary for an asset or possession is misleading you. Likewise, verbal promises mean absolutely nothing in law. The fuzzy promises made in person, or through an online service or mobile app are a frequent cause of friction between family members. You must describe the distribution of your estate in a legal Canadian Last Will and Testament; printed, signed and witnessed.

4. “I have never bothered with a will because I really don’t give a damn.”

Writing a Canadian Last Will and Testament is not about you, it is a simple courtesy for your loved ones that you leave behind. They may be upset by your passing, and significant assets may be involved. Only the most belligerent would deliberately devise a way to tear apart a family, but dying without a Will is doing exactly that. The process takes less than 30 minutes and saves months or years of pain for the family that you leave behind. It also ensures that most of the estate stays with the family and is not swallowed up by legal fees as different sides of the family battle each other in a courtroom.

5. “My advice? Give it all away PRE-mortem to avoid lengthy probate time.”

This is rather impractical advice because nobody really knows when they are going to die. If everybody knew for sure that they will live until they are 85 years old, then planning would be easy, but it is actually very difficult to spend all of your money while you are alive and still have money to live on. It’s a very poor approach compared to just writing a Will.

6. “Writing your will on a napkin is not legal unless it is stamped by a Notary”

For some reason discussions on Wills always devolve into the legal requirements for a Will and how you can just write a Will on a napkin. It is actually true in most Provinces that an entirely handwritten “Will” on the back of a napkin would suffice as a Last Will and Testament, but it’s an academic discussion because it makes absolutely no sense to do this unless you were pinned under a rock somewhere with hours to live (and even then, your state of mind could be challenged). You cannot write a well drafted Canadian Last Will and Testament starting with a blank piece of paper. A proper Will needs to have alternate plans, residual beneficiaries, trusts, guardians and powers to the Executor that cannot be drafted by a layperson. The comment that a will written on a napkin must be stamped by a Notary is incorrect, but don’t take this to mean that using a napkin, or even a do-it-yourself blank form kit is an appropriate way to write your Last Will and Testament.

7. “Anything written anywhere as a wish upon dying is considered a will unless superceded by a legal document.”

Again, this is a discussion about the minimum requirements required of a document to be considered a Canadian Last Will and Testament, but this comment seems to have mangled the very special legal requirements of a Will written by a member of Canadian Forces while on active duty. Written into most Provincial laws there is a special category of Wills that need not be witnessed if written by an active military service member. It doesn’t apply to the general public, and it is absolutely incorrect that anything you write “upon dying” is considered a Will. A Will must be printed, signed and witnessed while you have the mental competence to know what you are doing. Do not wait until you are about to die, and to suggest that this can be used as an estate planning strategy is laughable.

8. “Don’t let your children know they have Power of Attorney if you have chosen that in your will.”

You cannot include a Power of Attorney in a Canadian Last Will and Testament. The Power of Attorney is a document that is active while you are alive but unable to make decisions for yourself. The Financial Power of Attorney or Healthcare Power of Attorney are immediately cancelled at the moment you die, at which point your Will becomes active. Your Will is an inactive document all the time you are alive, so appointing a Power of Attorney in your Will is not possible. As an aside, some comments suggested that if you grant somebody powers through a financial Power of Attorney the person can prepare a new Last Will and Testament for you. This is not possible.

9. “In Quebec the civil code has provisions for exactly what happens in case you didn’t do your estate planning. Maybe other provinces should follow that model.”

Actually, every Province has a law of intestate succession (how everything will be divided if you do not have a Will) it is not unique to Quebec. However, this is an extremely poor approach to estate planning because the intestate laws will almost certainly not match how you would choose to distribute your estate. Many people have the misconception that the spouse just receives everything, when in fact this only happens in Alberta, Manitoba. It is never a good idea to leave the plans for distributing your estate to the laws of intestate succession.

10. “The fee you pay a lawyer usually includes safekeeping of a valid copy, and usually there is an index or a process that your heirs can use to find out which lawyer or successor law firm has the will.”

Many lawyers do offer to store your Will, but there is absolutely no index or process that heirs can use to find out which lawyer has the Will. One of the most common questions that we receive at LegalWills.ca is “My father created his Will when he was living in BC, and I think the lawyer has a copy, but I don’t know if the law firm still exists or which law firm he used, how can I find the Will”. We are not aware of any process that makes this task any easier (the government of BC allows you to register the location of your Will, but a tiny percentage of Wills are registered this way). In our opinion, the most effective solution to this issue is to give your Executor your Will in a sealed envelope for safe keeping.

Anonymous

Tim Hewson

President and CEO at Canadian Legal Wills
Tim Hewson is one of the founders of LegalWills.ca.

He has over 19 years of experience helping people to write their Will and other estate planning documents. He has been interviewed by many of the major news media outlets including CTV, Global News, The Toronto Star, and other leading Canadian publications. He has also contributed to a number of financial planning books.

Throughout his career, Tim has written extensively on the subject of Will writing and estate planning.
Anonymous

12 thoughts on “Ten myths about a Canadian Last Will and Testament

    • Canadian Legal Wills Canadian Legal Wills says:

      Hi Cheryl, thank you for your question, it really depends on where in Canada you are located. In most of Canada a parent (adoptive or otherwise) has no obligation to include their adult child in their Will. In BC there have been cases of adult children successfully challenging a Will, but not so much outside of BC. You are free to challenge a Will, but a lawyer would be able to advise you on your chances of winning the challenge.

  1. Nga Nga says:

    I heard that in BC, if a wife made a will for her own chiildren only (please note that all money in the will was given by her mom / grandparents’ children), not for her current spouse. If a wife passed away first, a spouse can go to court to ask for his portion. My question is if a spouse can go to court to ask for his portion, so what was the will made for? I thought a spouse does not reserve the right to ask for his portion because that amount of money was heritage from his mother-in-law for his wife.

    • legalwills legalwills says:

      Hi Nga, this is complicated, and I’m not entirely sure I follow. Generally, it’s not a good idea to disinherit one’s spouse, particularly if this comes as a surprise. The spouse can certainly challenge the Will in BC. However, the courts would decide whether the challenge had merit and would rule on whether the challenge is successful or not.

  2. Felice Verner Felice Verner says:

    My father died in 2000 in Montreal and since then I living in Italy and unique heir have neglected the entire Heritage.All assets are under Québec laws.Do the finances still remain in banks as originally or as I was told they are passed to Bank of Canada and become state-owned after 100 years or less?What are the time limits? Can I authorize power-of-attorney to any Canadian Citizen or is notary or lawyer obligatory? Do You handle these sectors?

  3. Ann Ann says:

    How can one determine whether a will has been completely disbursed, in accordance with the terms? Is there a time limit for this to be completed? If not, how would one resolve the issue?

    • legalwills legalwills says:

      Hi Ann, thanks for taking the time to comment. The best place to start is to contact the Executor. You would then be able to determine if the Will has been probated. If it has been probated, then the document is public, and you would be able to read it. People sometimes refer to the “Executor’s Year” which is a general guideline for the length of time to administer an estate. It can take a long time, but if more than a year has passed, then you could start asking some questions.

  4. Jacqueline Bonaguide Jacqueline Bonaguide says:

    I was born in Canada (Quebec Province) but I’ve been living in the USA (Connecticut) for several years. I have an elderly aunt in Canada (Quebec Province). I know for a fact that I am in her will. Now family members in Canada are telling me that I cannot inherit anything from her because I am a US citizen, living in The US. Is this true? Furthermore, They are asking me to renounce any right to inherit and state that the money should be distributed only to family members living in Canada. ** Please note that my 92 year old aunt is in extremely bad health and not cognitive enough to change her will or participate in this dilemma. So please, let me know what Canadian (Quebec province) law is. Thank you.
    Jacqueline Bonaguide

    • legalwills legalwills says:

      Hi Jacqueline, thanks for the great question. We cannot give you legal advice on this blog, but we can give you some general guidance. There is absolutely no residency or citizenship requirements for a beneficiary. Your aunt could give her entire estate to the Louvre in Paris if she wanted to, or to a cat’s home in Australia. Before you renounce any right to inherit (not entirely sure how you can do this anyway), you may want to get legal advice. But based on our experience, your family members are misleading you.

  5. legalwills legalwills says:

    Thanks for the comment Alejandro. A Will is going to last you for the rest of life unless one of three things happens; you destroy it, you prepare a new Will, or in some Provinces, if you get married then your Will is automatically cancelled. Otherwise, there is no expiration date; it will last for your whole life. We do of course recommend that you review it from time-to-time to make sure that it still reflects your current situation and wishes.

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