What is a will?
A will is a legal document that sets out who will inherit their estate (their property, possessions and other personal items) when someone dies.
A will is considered valid when it meets certain legal requirements. In general, a will is considered valid when it is signed by the person making it and two witnesses who do not benefit from the will. In this blog post, we will be discussing the basic requirements for wills in Ontario.
There are different requirements for wills that are handwritten by the person making them. This type of will is called a “holograph will”, and is not discussed in this blog post.
Why do I need a will?
A valid will is a very important document. It’s the easiest way to ensure that your wishes for the distribution of your property are followed after you die, and can help avoid disputes and confusion that may arise regarding your estate.
Every adult needs a valid will, whether or not they have a lot of property. A valid will is essential for anyone who is legally married, has a common law spouse or is recently separated but not divorced.
You might be asking yourself, what’s the big deal about not having a valid will? Aren’t there laws that deal with this?
While it’s true that there are laws that set out how property is distributed when a person dies without a valid will (called “dying intestate”), not having a will creates many challenges for your loved ones.
The law has specific rules about how property is distributed, and these rules may or may not align with your wishes. This means that while you may have intended for your favourite niece to inherit money for her education, she may not receive anything if you don’t specify this in your will. This raises the opportunity for confusion, conflict and disappointment.
When a person dies intestate, their loved ones are required to go through a complex legal process to have the estate distributed. This often requires the help of lawyers, and can be very expensive and time-consuming.
Take the situation of Aretha Franklin, the Queen of Soul. When Aretha passed away, it seemed that she didn’t have a valid will that set out how her $80 million estate should be distributed, which left her family scrambling to figure out what to do. Since her passing, several handwritten documents have been found that seem to set out how she wanted her assets distributed after her death. Her family now has to ask the courts if any of the documents are in fact valid wills. If they are not, her estate will be distributed according to the law. In either situation, her family will need to go through a very long, complex and expensive process to settle Aretha’s estate. All of this could have been avoided with a valid will.
Creating a will is a very easy and simple way to start planning for your loved ones’ futures, and will give you piece of mind knowing that your estate will be shared in accordance with your wishes.
When should I start planning my will?
Right now. The best time to prepare a will is when you don’t need one - that is, when you are in good health and not experiencing a health crisis. It is never too early to create your will.
For many of us, ourselves included, talking about, let alone planning for, some of the more difficult stuff in life - what happens after we die - is very hard. Maybe we feel that we have lots of time to figure that out, or perhaps there is a bit of denial that we will ever need to deal with a situation like that. Maybe it’s just not something we want to think about.
Do yourself and your family a favour: don’t wait. It might not be very fun, but you and your family will be thankful that you took the time to prepare.
How do I write and sign my will?
The most common way to create a valid will is to speak with a lawyer who specializes in wills or estates.
However, you may not be able to, or want to, use a lawyer to help draft your will. That’s okay - you can still create a will using a will kit, or an online will drafting service like Canadian Legal Wills. Downtown Notary has partnered with Canadian Legal Wills to provide 15% off their services when you use this link. Just answer the simple questions to create your legal documents online.
Once you have written your will, you will need to sign it to ensure it is valid. This is also called “executing your will.” In Ontario, you must sign your will in front of two witnesses who are not the executor (the person assigned to administer your will) or their spouse, or a beneficiary or their spouse. The witnesses must also sign the will.
Does my will need to be notarized?
Generally, wills do not need to be notarized.
However, it is generally recommended that one of the witnesses swear an affidavit of execution in front of a notary or commissioner for taking oaths. This affidavit (also known as Ontario Court Form 74.8) is available for free download from the Ontario Court Forms website. This affidavit confirms that the witness saw the person making the will sign it in front of them. When an executor applies to the courts to validate a will (a process called “probate”), they should file the affidavit of execution with the probate application. While it may be possible to probate a will without an affidavit of execution, it will likely make the process more difficult and lengthy.
Can Downtown Notary help me with my will?
Downtown Notary can definitely assist you with executing your will. We can notarize the affidavit of execution, and we can even arrange for an additional witness if needed. Contact us for more information. Ready to get started? Contact us for more information, or book your appointment online today.
Downtown Notary does not draft wills. If you need assistance with writing a will, we strongly suggest that you speak with a lawyer who specializes in wills and estates.
Where can I get more information?
This is a very high level overview of wills. For more detailed information, we suggest you read the Ministry of the Attorney General’s page on Wills, Estates and Trusts. You can also visit Ontario Estate Law for detailed information about wills. Please also be aware that this blog post does not in any way constitute legal advice and is not a substitute for speaking to a lawyer. You may wish to speak to a lawyer regarding any specific questions you may have about wills and estates.