Q: Can you review the most important points about a will? Are there special forms that must be used? We write from British Columbia, but still have property in Saskatchewan. Does this matter?
A: First, a will must be in writing. Your public declaration in front of witnesses that you leave your farm to your niece Sarah is not sufficient. While the will must be in writing, there is no particular form that must be used, nor is special paper or wordingrequired.
The will must be signed by the maker at the end and witnessed by two individuals who must also sign as witnesses.
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A beneficiary or their spouse should not witness the will. Laws dealing with wills provide that any bequest to a witness or the spouse of the witness is void – although in some provinces, a judge can allow such a gift if she is satisfied that the witness did not influence the will maker.
Holograph wills, which are entirely in the testator’s handwriting, are legal in all three prairie provinces, but not in B.C. What if you buy a will form and fill in the blanks in your handwriting?
There have been cases where the court has upheld a will as being a valid holograph will if it is substantially in the testator’s writing.
However, your goal is to make things simple for your survivors. The last thing you want is for them to have to go to court with a questionable document. For that reason I don’t recommend holograph wills and recommend caution in using the do-it-yourself will kits.
Yes, you might save $50-$200, but if there are complications for your survivors, it’s hardly worth it. However, will kits certainly give you a good idea of what is involved in making a will.
The important thing is that the will be clear in its directions. A will should name an executor who will look after your affairs on your death. Among other things, this person will be responsible for paying your debts, filing necessary tax returns and distributing the property according to the directions in your will.
You can appoint more than one executor, but the more people that are involved, the more complicated decision making can be. It is also wise to name an alternate executor in case your first choice can’t act or dies. It is also legitimate to appoint a trust company to act in that role.
A will that does not provide for dependants can be challenged. Under matrimonial property laws your spouse may have an interest in your property and you cannot will away your spouse’s rights. Unless the will is made specifically in contemplation of marriage, a marriage negates your will.
In Saskatchewan, after two years of living common law, your will also becomes invalid. In these instances, you must make a new will.
It is important to ensure that your will is up to date. Let’s say that you leave the south half of section 28 to your son James and the rest of the land to Peter. If you sell the south half, James will get nothing.
Your executor should be informed of his appointment and know where the will is. Bank safety deposit boxes aren’t always the best place for a will.
A bank may be reluctant to open a deceased’s box upon the supposed executor showing up. A bank would be well within its authority to refuse Joe and ask him to show up with a court order.
If you have property in more than one province, your will may have to be probated in one province with the will and probate being approved by a court in the other. This process is called resealing.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
