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CATEGORY : Wills

CATEGORY : Wills April 25th, 0 Comments

Ultimate Guide to Writing Your Own Will [With Examples]

“Do I have to pay a lawyer to draft a will?” If you’re reading this, chances are you’ve asked yourself this question. 

Well let me reassure you; you really don’t. The toughest thing about drafting your own will is navigating through the legal requirements, technical jargon, and the ocean of rules and regulations. If you screw up your taxes, you can always go back and correct it; but if you screw up your will, there are no do overs for obvious reasons. 

That’s why we’ve set out to create the most comprehensive guide to will-writing on the internet that’s simple to follow so that anyone can draft a legally recognized will. That being said, let me preface this by saying: we would still recommend you to see an estate attorney if your estate situation is complex. This is a guide for people with relatively simple estates that would like to save on costs.

We want to make sure our information is accurate. Therefore, we read the Law Society’s Professional Legal Training Course material so you don’t have to. 

Why Even Write a Will? The Importance of Estate Planning

Before we get into the nitty gritty, it’s important to understand why having a will is so important.

If someone was to pass away without a will, that person is said to have died intestate. In the case of a person passing intestate, their estate will be distributed based on preset statutory rules.

Here’s why passing without a will might not be ideal for you:

  • Risk of beneficiaries being disqualified from assistance programs

Since you have no control over how your estate will be distributed, the result might disqualify your beneficiaries from assistance programs. 

Here is an example: Your spouse was on BC’s income assistance program. If you pass without a will, the statutory rules of intestate allocated $50,000 to your spouse, increasing their assets past the income assistance eligibility threshold. Your spouse gets removed from income assistance. 

  • Risk of unfavorable asset distribution in other jurisdictions

If you’re someone who owns real property in other provinces or countries and you pass without a will, the assets you own in other jurisdictions will be distributed according to the rules of that specific jurisdiction which may not be ideal. 

  • Your estate may not be allocated to the beneficiaries who need it most

If you have children or other beneficiaries, your spouse will not be entitled to the entire estate according to the rules of intestacy. This may be troublesome if your spouse needs significant support from the estate. Here is a chart of how your assets would be distributed according to the rules of intestacy:

Dies LeavingDistribution
Spouse and no descendantsEntire estate to spouse
Spouse and descendants of intestate and spouseto spouse: preferential share of $300,000; furnishings of spousal home and right to acquire spousal home from estate for 180 days after representation grant 
residue: half to spouse; half to intestate’s descendants pursuant to
Spouse and descendants of intestates but not spouseto spouse: preferential share of $150,000; furnishings of spousal home; and right to acquire spousal home from estate for 180 days after representation grant 
residue: half to spouse; half to intestate’s descendants pursuant to
More than one spousespousal share divided as the spouses agree or as determined by the court
Descendants but not spouseequally among the descendants, pursuant
Parents but no descendantsequally to surviving parent or parents 
Descendants of parents (deceased’s siblings) but no parent of descendants equally to the descendants of the intestate’s parents or parent 
grandparents or descendants of grandparents (deceased’saunts, uncles, cousins) but no descendants, parents, or descendants of parentsequally to surviving grandparent(s) or, if any grandparent is no longer surviving, that part to descendants of the deceased grandparent
great-grandparents ordescendants of great grandparents, but nodescendants, parents,grandparents, or descendants of grandparentsequally to surviving great grandparent(s) or, if any great-grandparent is not surviving, that part to descendants of the deceased great grandparents

Here is an example of how assets will be distributed if a person passes intestate:

  • Loss of distribution control if you have a sole successor

If you pass without a will and have a sole beneficiary who is a minor or is mentally incompetent, the Public Guardian and Trustee will have to be notified and may take over the responsibility of your estate distribution. This not just results in you losing control of how you want to distribute your estate, it also results in additional costs. 

  • Avoidable taxable gain and liability for estate tax

Assets that can roll over to your spouse on a tax deferred basis generally can’t roll over to your children on a tax-deferred basis. So in the case that someone passed away without a will, the asset allocations according to the statutory rules might mean extra costs in the form of taxable gains and liability for estate tax.

  • Guardian for minor children

If you pass away intestate, you lose the ability to select a guardian for minor children (unless you’ve already done so under the family law act) which can be unfavorable for your child depending on who the court appoints as a guardian. 

What to Include in the Will

Now that we’ve talked about how important it is to have a will, we can go over what elements are mandatory to include in a will. 

  • Preface

The preface paragraph needs to identify who you are and confirm the intention that the will is intended to be your last will.

Ex.

  • Revocation of all former wills

Since the court only recognizes the most updated will, it’s imperative to include a paragraph specifically stating that you intend to revoke all previous wills as well as the date of this current will. 

Ex.

  • Appointment of executors and trustees as well as alternatives

An executor is someone that you appoint to handle your estate and carry out your will after you pass. A Trustee is someone who manages specific trusts for you. It’s a good idea to list out your executors and trustees as well as 2 or more alternatives in case they are unwilling to act or continue to act. 

Ex.

  • Appoint Guardians

Passing away with minor children is one of the most worry-inducing situations to be in. Everyone wishes to pass away knowing that their children will be properly taken care of. Make sure to include a section appointing guardian(s) as well as 2 or more alternatives just to be safe.

Ex.

  • Gifts

This is probably the most important part. In this section, you list out how you want to distribute your assets amongst the beneficiaries. Try to be as comprehensive and specific as possible to ensure your will gets carried out as you intended. 

Ex.

  • RRSP/RRIF, debt, or life insurance beneficiary designations

Outline how to allocate your RRSP/RRIF accounts and life insurance payouts if any. Then include how to deal with debt like funeral expenses, income tax, and estate related taxes as well as which trustee you would like to handle this task.

  • Administrative powers

In this section, you may grant your executor specific administrative powers. Couple examples are: 

  • The power of sale
  • The power to compromise claims of creditors
  • The power to value and distribute property
  • The power of investment
  • The power to borrow, secured by mortgage or pledge
  • The power to manage real estate
  • The power to make income tax elections and designations.

Ex.

Conditions for a Will to be Recognized in Court

WESA Technical Requirements

WESA (Wills, Estates, and Succession Act) has set some requirements for a will to be considered valid:

  • The will must be in writing
  • The will must be signed at its end by the will-maker (or by another person in the will-makers presence and by the will-makers direction)
  • The will-maker must make or acknowledge the signature in the presence of two or more witness who are both present at the same time
  • Two or more or more of the witnesses must sign the will in the presence of the will-maker
  • The will-maker must be at least 16 years of age

*WESA has recently broadened the meaning of presence to include remote signing where parties are in each other’s “electronic presence”

Now for the most important part. No matter how perfect and comprehensive your will is, it means nothing if the court does not recognize it to be legal. When that happens, your assets will be distributed as if you passed away without a will, so we want to make sure we get this right. Here are the conditions for your will to be recognized in court according to the Law Society:

  • Will-maker must have intended the will to have a dispositive effect

Dispositive is basically a fancy (legal) way of describing “the intent to settle a claim, legal issue, or controversy”. So this condition means that the will-maker must intend for the will to serve the purpose of a will. 

  • Will-maker must intend for the will to not take effect until after death and be entirely dependent on death for its operation

This one is pretty self-explanatory. 

  • Will-maker must intend for the will to be revocable

This means that the will-maker must understand that the will can be altered or canceled and intend for the will to be so. 

  • Will-maker must have executed the will in accordance with the formal requirements of WESA

These are the technical requirements we went over in the above section.

Testamentary Capacity

In addition to following the technical and legal requirements, WESA also requires the will-maker to be mentally capable in order for the will to be considered valid. To be mentally capable of making a will means:

  • The will-maker must understand the nature of the act of making a will and should intend to make a disposition of property effective on death

The person writing the will must understand that the document is intended to resolve claims, legal issues, or controversy of their property after your passing. The will is not valid if the will-maker was coerced or manipulated into making it. 

  • Will-maker must be free of mental disorder

Victims of mental disorders such as Alzheimer’s, dementia, and schizophrenia are deemed as not having the testamentary capacity to create, amend or revoke a will. You will still be able to do these things if you are diagnosed early enough and you are deemed to have testamentary capacity by a medical professional. If your family history has proven you are prone to these mental disorders, it is advised to make a trusted person as your POA (power of attorney) so that if the time comes, they can make amendments for you. 

  • The will-maker must know the nature and extent of their property

You must have a general understanding of the property you own. Don’t worry, the court will not expect you to be able to list out every item of your investment or real estate portfolio.

  • Will-maker must know the persons who are the object of their bounty

This means that you must know who the beneficiaries are as well as what you are giving them. 

  • Will-maker must understand the manner in which their estate will be distributed

You will need to know and understand how your estate will be distributed to your beneficiaries. 

One thing to keep in mind is that testamentary capacity is not something that can be diagnosed. Medical evidence only serves as important and relevant information. Ultimately the court is open to reach a conclusion based on the evidence it has. 

Signing (Executing) the Will

The requirements for will signing is quite straightforward. It simply requires your signature, followed by the signature of 2 other witnesses that are not beneficiaries indicating that they witnessed your signature (order matters; you must sign before your witnesses). 

Although it’s not required to go to a notary for the will to be legally valid, if your situation is more complex (ex. Child support obligations, blended families,  foreign investments), it might be a good idea to go to a notary to save yourself from future complications.

In BC, due to covid-19, the government has permitted online witnessing and signing of wills so you are able to execute your will in the comfort of your home using services like NotaryPro

After signing the will

Wills notices

After a will has been signed and executed, it might be a good idea to file a wills notice with Vital Statistics. The will notice requires your full name, date, your place of birth, date of execution and the location of the will. By filing a will notice, you now have official records of your estate planning efforts and will minimize further complications down the road. Examples where the deceased has written a will but, his family only knows that he put it in an unknown safety deposit box are quite common. 

Wills storage best practices

The Law Society official recommendation is to keep wills in a place where they can be readily located and retrieved when required and free from risk of accidental loss or destruction. If you search “where to store wills” on Google, you will get some interesting results (like in your freezer as it’s the last place to burn in a fire…) Here are some recommended options for will storage:

  • Store it with your Lawyer

If you went to a lawyer to draft your will, most attorneys will give you the option of storing your will with them for a fee. If you choose to leave your will with your attorney, make sure to tell your family that you’ve done so and mention it in your will notice if you are planning to submit one. 

  • Safety deposit box (only if you’re comfortable with someone else having access)

Only store your will in a joint safety deposit box. If nobody but you has access to the safety deposit box, a court order is required for your family to access it after you pass, which could take a long time. This further delays the probate process and might cause nuances for your loved ones. 

  • Online Will Storage 

Since the amendments to Bill 21, BC now recognizes electronically stored wills. Estate document storage tools such as Time Secured are becoming increasingly popular due to its ability to automatically give access to executors and beneficiaries upon passing. 

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