What makes a will in Canada valid? Find out what the requirements are to guide your clients in drafting ironclad wills
One of the major apprehensions of clients about drafting wills in Canada is its basic requirements, or simply “how do I do it?”. When clients come up to lawyers, this article can be used to inform them of the general rules in making wills according to the laws of Canada.
The requirements of legal and valid wills in Canada are guided by succession or estate laws of each province.
These laws consider two things for the validity of wills:
- the capacity of the testator (the one making the will)
- the formal requirements of wills
Testator’s capacity in making a will
To make a will valid, provincial or territorial inheritance laws of Canada state that a testator must be:
- at least 18 years old
- mentally capable or of sound mind
Testamentary capacity – Age
It’s best to check with an estate lawyer since these laws may vary per province or territory. For example, under British Columbia’s Wills, Estates and Succession Act, anyone who is 16 years old is allowed to make a will if they are mentally capable.
Under Ontario’s Succession Law Reform Act, wills by minors (below 18 years old) are allowed, but only in the following cases:
- when the will is made in contemplation of marriage, and the will states such circumstance;
- when the minor is a member of a component of the Canadian Forces; or
- when the minor is a sailor and is on a voyage.
Testamentary capacity – Sound mind
Common law provides for the considerations when deciding that the testator has a “sound disposing mind”.
First, the testator must be of sound mind at the time of the making of the will.
Second, the testator must be “free and capable” and must know and understand the following when making their will:
- the nature of the will, including its possible effects and any legal claims against their estate;
- the properties to be inherited, including the nature and extent of these properties;
- the persons to whom these properties will be given; and
- the testamentary provisions to be written in the will.
When disputes on a will arise, it will be decided by the court on a case-by-case basis. The court will look at the individual circumstances of the testator, their properties, and the situation surrounding the creation of the will.
Formal requisites in making a will
Under the provincial or territorial laws on succession and inheritance, there are two main types of wills in Canada:
- Formal, Attested, or Notarial wills
- Holographic wills
Each of these will have its own necessary requirements to be considered valid.
Formal, Attested, or Notarial Wills in Canada
Wills other than a holographic will are called formal, attested, or notarial wills. While its name may vary in every province, some common requirements to make it valid and legal are the following:
- It must be written.
- It must be stored in its physical form.
- It must be witnessed by at least two people who are of legal age and are of sound mind.
- It must be signed by the witnesses in the presence of the testator.
- It must also be signed by the testator at the end, also in the presence of the witnesses.
- It must have an affidavit signed by the witnesses, which states that the testator and the witnesses signed the will in the presence of each other.
In most provinces, the two witnesses must not be among the beneficiaries in the will.
Whether a testator may seem to have a complex estate or not, it’s still recommended to consult an estate lawyer when drafting a will. Other legal considerations are addressed by lawyers to ensure that a person’s will is valid.
While testators may keep their own will, it’s also recommended to have the lawyer keep it for them. This will prevent any chance of it getting lost or destroyed.
In most cases, an estate lawyer may be chosen by the testator to become their executor. However, a testator’s relative or friend may also be the executor. But first, such executors will have to apply for a grant of probate.
To know more about the process of applying for a grant of probate, watch this video:
Head over to Canadian Lawyer’s Trusts and Estates page for more resources on wills in Canada, trusts, estate planning, and succession planning.
Holographic Wills in Canada
Holographic wills are also called personal wills. These types of wills can be written alone by a testator, subject to the following requirements:
- It must be completely handwritten (not typed or printed)
- It must be dated by the testator
- It must have the signature of the testator at the end
Based on these, holographic wills can be made without the assistance of a lawyer, and even without any witnesses. In addition, there can never be “oral” holographic wills in Canada; they must be written.
However, there are certain provinces that do not recognize holographic wills, such as:
- British Columbia
- Prince Edward Island
The other recourse of those who live in these provinces is to have a formal or attested will.
The cost of making a will in Canada will depend on the type of will, and the factors surrounding the testator’s estate.
Some types of wills, such as store-bought or online wills, are relatively cheaper compared to formal or notarial wills. However, the risk of having it invalidated due to the laws or other legal impediments not being considered is high.
While a testator may not incur any cost in making a holographic will, it is usually avoided when one has a complicated estate, or when properties are in different jurisdictions (e.g., in a different country).
On the other hand, the costs of making a formal or notarial will depend on the time and effort of the lawyer who prepares the will. But one is assured that the end-result is a will that is legally valid under Canadian laws.
For more information about wills in Canada, especially for complicated estates, see our Special Report on Best Law Firms for Wills, Trusts, and Estates.
What should lawyers remember when advising clients on drafting wills? Share your thoughts in the comments below.