Last Will and Testament

What is a Last Will and Testament?

A Will is a legal document that sets forth the wishes of a person (the testator) after death. The Will gives directions regarding the distribution of property and the care of minor children, if any, after death, and is the centerpiece of an estate plan. A Will is meant to ensure that the wishes of the deceased are followed.

Is it mandatory to have a Last Will and Testament?

No. Having a Last Will and Testament is not a legal requirement. However, having a Last Will and Testament is important because it prevents the government from deciding how a deceased person's property will be distributed. The government's decision on how and where property will be distributed is based on the Provincial or Territorial laws where the deceased held assets. Not having a Will in place increases frustration and complexity for those taking care of the estate.

What must a Last Will and Testament contain?

A Will must at least contain a clause appointing an executor and a clause dealing with the property of the testator, including a residue clause. A Will must clearly show the deceased's intention with respect to their property.

The appointment of an executor means choosing an individual to look after the deceased's estate, including paying all debts, advertising to creditors, and distirbuting the deceased's property. The residue clause is the part of the Will that disposes of what remains of the deceased's property after all debts have been paid and after all specific gifts have been distributed.

Who can sign a Last Will and Testament?

In most jurisdictions, the testator must be at least 18 years old to make a Last Will and Testament. In addition, the testator must be of "sound mind" to make a Last Will and Testament, which means that:

• The testator understands he or she is making a Will and knows what a Will is;
• The testator understands his or her relationship to those mentioned in the Will; and
• The testator understands what type of property he or she owns, the extent of that property, and how he or she intends to distribute that property.

What has to be done after the Last Will and Testament was signed?

For a Will to be valid, it must be signed by the testator and two witnesses at the same time in the presence of each other.

The witnesses must not benefit under the Will.

After the Will is witnessed, one of the witnesses must sign an Affidavit of Execution. A witness can be anyone other than a beneficiary under the Will or the beneficiary's spouse.

The affidavit must be signed in front of a commissioner of oaths and affidavits. A commissioner is a person appointed by the government to certify affidavits. A commissioner also includes a lawyer or a paralegal.

Which documents should be attached to the Last Will and Testament?

An Affidavit of Execution should also be attached to the Last Will and Testament. The Affidavit is not mandatory, but the importance of the Affidavit should not be overlooked.

The Affidavit serves as evidence that the Last Will and Testament was properly signed before two witnesses and that the testator had knowledge and approval of their Last Will and Testament.

Is it necessary to register the Last Will and Testament?

No. The Last Will and Testament does not need to be registered.

The testator may choose to register their Will online in a registry system for an additional fee (around $40).

The registration allows an executor to locate the deceased's will because it contains specific instructions, such as the code to a safe.

Is it necessary to have witnesses to the Last Will and Testament?

Yes. For the Last Will and Testament to be valid, it must be witnessed before two witnesses.

A witness can be anyone other than a beneficiary under the Will or the beneficiary's spouse.

What are the costs involved in the finalization of the Last Will and Testament?

If the witnesses to the Last Will and Testament have signed an affidavit of execution, it needs to be commissioned by a commissioner, which will be an added fee. The amount of the fee depends on the individual commissioner's rate (around $50-$300).

When should the Last Will and Testament be changed?

A Will should be reviewed from time to time to ensure that it still meets the needs of the testator and that the property will be distributed according to his or her wishes. It is especially important to review a Will on the following events:

• The testator gets married or divorced;
• There is a significant change in the amount of money and property the testator owns;
• The executor or a significant beneficiary in the Will dies;
• There is a birth or adoption of a child in the testator's family;
• The testator changes his or her mind about the provisions in his or her Will.

Which laws are applicable to the Last Will and Testament?

In Canada, wills, testamentary succession and estate law is a provincial or territorial matter. There are many different laws in each jurisdiction that govern Wills, trusts, executor powers and compensation, and so forth. The following are the primary statutes governing Wills:

• Alberta: Wills and Succession Act (RSA 2010, Chapter W-12.2)
• British Columbia: Will, Estates and Succession Act (RSBC, c 13)
• Manitoba: The Wills Act (CCSM, c W150)
• Northwest Territories: Wills Act (RSNWT 1988, c W-5)
• Nunavut: Wills Act (RSNWT 1988, c W-5)
• Ontario: Succession Law Reform Act, R.S.O. 1990, c. S.26
• New Brunswick: Wills Act (RSNB 1973, c W-2)
• Saskatchewan: Wills and Succession Act (SA 2010, W-12.2)
• Yukon: Wills Act (RSY 2002, c 230)
• Nova Scotia: Wills Act, RSNS 1989, c 505
• Newfoundland and Labrador: Wills Act, RSNL 1990, c W-10
• Prince Edward Island: Probate Act (RSPEI 1988, c P-21)

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