If you make your own Will, does it need to be notarized?
The most common way to make your own Will is to use a Wills Kit. A Wills kit contains a template for making your own Will, and instructions on how to fill the template out. These instructions are important – if you don’ follow the legal requirements for making a Will, your document could be invalidated.
Once you have your Will made, you will need to sign it. In BC, a Will must be:
37 (1) To be valid, a will must be
(a) in writing,
(b) signed at its end by the will-maker, or the signature at the end must be acknowledged by the will-maker as his or hers, in the presence of 2 or more witnesses present at the same time, and
(c) signed by 2 or more of the witnesses in the presence of the will-maker.Wills, Estates and Succession Act, SBC 2009, c.13, s.37
There is an exception to this requirement that allows a “member of the Canadian Forces while placed on active service under the National Defence Act (Canada)” and certain other persons serving in various forces to make a Will without a witness.
So does a witness have to be a certain kind of person?
A witness must be 19 years or older. A witness should not be a beneficiary under the Will (otherwise the gift they have been given could be void).
There is no requirement for a witness to be a notary or a lawyer.
If there is no legal requirement for a witness to be a notary or a lawyer, does it make the Will more valid to have it be signed by a notary or a lawyer?
No. If the notary or lawyer drafted the Will, then it might be more valid (because the notary or lawyer might be able to make a Will that conforms to the other legal requirements a Will must meet), but simply having a notary or lawyer sign your home-made Will does not make it more valid.
It isn’t common for a notary or lawyer to act as a witness to a Will they didn’t make. This is because there is a presumption that when a notary or lawyer takes your signature on a document, they are meeting a professional standard of care.
So any notary or lawyer who signs a Will as a witness may become liable for the failure of the document. As a result, most notaries or lawyers will refuse to sign a Will that they have not made.
Follow the instructions in the Wills Kit and the requirements of the Wills, Estates and Succession Act in order to ensure your Will is properly signed and otherwise valid.October 29, 2018 10:42 pm
Tags: estate planning, home-made Will, notarization, will