A Will tells others who should manage your affairs after you die, who should look after your minor children, and how your assets should be distributed and your debts paid.
Wills are documents that speak for you after you have passed away; it's really important you get these documents right, though, since you won't be able to come back and change them if you get them wrong!
Can I really make my own Will?
Yes, of course you can make your own Will. The question is... should you?
If you are able and willing to do the research necessary to make a valid Will, fantastic. If not, please consider hiring someone to help you make a Will.
A lot of clients ask us how they go about making their own Will. They know they need one, but they feel like they can't afford a notary or a lawyer, or are too intimidated to make an appointment.
A lot of clients are afraid that they won't be able to understand what their notary or lawyer tells them, and they don't want to look stupid. So rather than have no Will at all, they decide to make their own. And that's totally okay. Probably.
Remember that this blog is for informational purposes only (no legal advice!), and can't possibly tell you everything you need to know about making your own Will. It's only an introduction to the topic. There's a reason notaries and lawyers spend a good deal of their time getting educated about these issues - they can be really complicated.
While this blog will give you some useful information about home-made Wills, it's really important that you don't take this lightly. This is your entire life's work we're talking about here, so if you can't figure out how to do this yourself, please ask for help. It won't be as scary as you think, and the consequences for getting it wrong are big. Some people can do their own electrical work, or their own taxes, and some can't. Know where your limits are.
So, having said all of that, how do you make your own Will?
- make sure you know what a Will is first
- decide who your executors should be
- decide who your guardians should be, if you need them
- decide how you want to distribute your estate
- make sure you are eliminating some of the common mistakes in Will-making
- include the right "powers"
- sign it properly
What is a Will?
First, you need to know what a Will is first (so you make sure you get the right content in it). A Will does a few really important things for you:
- appoints guardians, if you have minor children
- appoints executors - the people who manage your estate for you
- tells your executor to pay bills and taxes
- tells your executor what to do with your net estate
- gives your executor the ability to carry out your wishes
Wills are different from province to province, so you need to make sure you are paying attention to BC's law: Wills, Estates and Succession Act, SBC 2009, c.13 ("WESA").
Here's what WESA says about how you make a valid Will:
How to make a valid will
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.
(2) A will that does not comply with subsection (1) is invalid unless
(a) the court orders it to be effective as a will under section 58 [court order curing deficiencies],
(b) it is a will recognized as valid under section 80 [validity of wills made in accordance with other laws], or
(c) it is valid under another provision of this Act.
BC Government's Senior's Site gives some information on making a Will, which you should read before you start.
Self Counsel Press has precedents for making your own Will. Please be VERY careful when using these precedents to make sure that you understand them, that they comply with the law for BC, and that you are using them properly. If you don't understand them, or can't tell whether they are going to be valid for you when you're done, then making your own Will is not for you!
Decide who your executors should be
Your executor is the person (or people) you appoint to manage your estate for you after you die. You should ask the person you want to appoint if they will take this work on for you, as they do not have to accept. Try not to appoint too many people to act together, as that can cause practical problems - trying to get 3 or 4 people to sign off on things can be challenging.
Consider appointing a professional executor - a trust company, for example. Most of the major banks have trust companies attached to them, and these trust companies provide an excellent, professional service for you. They are reliable, knowledgeable, and objective. Yes, they charge a fee, but that fee is no more than any other executor (even your own family) could charge. It can be very worth it to have a professional look after your affairs.
Decide who your guardians should be
Guardians are people who look after your minor children for you after your death. The law around guardianship is quite complicated, and if you are at all unsure about what guardianship rights you have, or don't have, you should NOT make your own Will. You do not want to inadvertently cause a "hole" in your Will that will affect who looks after your children.
Decide how you want to distribute your estate
After your executor pays your bills and taxes, they will be left with what we call the "residue" of your estate. What do you want your executor to do with that?
In many cases, your executor will sell the majority of your assets and be left with cash, or simple bank accounts or investments. They will distribute the residue of your estate as you have set it out in your Will. You need to be careful about how you do this. Here are some (and only some!) common mistakes people make:
- not properly adding up the percentages of their estate and giving away less than 100% of your estate
- incorrectly naming people who are to receive a gift
- being unclear about the size or description of the gift you want someone to get
- giving the same thing to more than one person
Obviously, this isn't an exhaustive list. If you want to cut someone out of your Will, or if you have a disabled spouse or child, you do not want to be making your own Will. These life scenarios require extra special care and attention.
Eliminate some of the common mistakes in Will-making
Aside from the mistakes you might make in the Will itself, here are a few mistakes people make that can either invalidate your Will in whole or in part, or open it up to a claim:
- being too young to make a Will
- not having testamentary capacity
- allowing someone else to dictate the terms of your Will
- not giving adequate provision to a spouse or child
- making a will in the midst of suspicious circumstances
These are only a few of the reasons claims can be made against your estate. If you have any of these situations happening, please do not make your own Will - talk to a notary or a lawyer first.
Include the right powers
An executor needs clarity around how they are to do their job. Just appointing someone and telling them what to do isn't enough. You need to make sure you give them your executor the powers they need to do their job properly.
If they need to sell your home, have you given them the power to sell your assets? If they need to continue your investments going while they are managing your estate, have you given them the power to do that? Have you given them the power to to tax planning? To decide how to settle claims? To borrow? To deal with your business?
If you don't give your executor the right powers, they may have to go to court to ask a judge for a court order granting them the appropriate power to deal with your affairs.
Sign it properly
According to WESA, a Will must be signed in front of witnesses. There are specific requirements about who can act as your witness:
Witnesses to wills
40 (1) Signing witnesses to a will-maker's signature must be 19 years of age or older.
(2) A person may witness a will even though he or she may receive a gift under it, but the gift may be void under section 43 [gifts to witnesses].
(3) A will is not invalid only because a witness was, at the time the will was signed by the will-maker, or afterwards became, legally incapable of proving the will, unless the witness was not 19 years of age or older at the time the will was signed by the will-maker.
You are absolutely allowed to make your own Will yourself. But before you do that, please make sure you have done your homework, and that you are complying with the law.
Because the consequences to getting it wrong are so high, most notaries and lawyers will not act as your witnesses - they do not want to be found to be responsible for bad work (unless of course it is their own!).
If you are not sure about what you are doing, or if you simply can't figure it out, please call us. It won't be as scary or intimidating as you might think, and the cost will be less than having someone have to go to court to determine whether the document you made is a Will, and what it means.
Categorised in: Wills
This post was written by Linda Caisley