Estate planning is an essential part of life that everyone should consider. A will is one of the most critical documents in estate planning, and it is a legal document that outlines how a person’s assets will be distributed after their death. This document is necessary to ensure a person’s wishes are respected after death.
However, a will and testament can be contested, leading to legal and family conflicts. As per Canadian law, a will must meet specific requirements to be considered legally valid.
Failure to meet these requirements can lead to complications and disputes among beneficiaries. And so this article will discuss the requirements for a will to be legally valid in Canada.
This pertains to the mental ability of an individual to understand the nature and consequences of creating a will. According to Canadian law, a person must be of sound mind when making a will.
They must be aware of their assets, the potential beneficiaries, and the implications of their decisions. If a person is found to lack testamentary capacity, their will may be considered invalid.
The second requirement for a will and testament to be legally valid in Canada is that it must comply with certain formalities. The formalities refer to the legal procedures that must be followed while creating a will, including:
- The will must be in writing: A will must be in writing to be considered legally valid. It can be handwritten or typed, but it must be in a format that is easy to read and understand.
- The will must be signed: The person creating the will must sign it in the presence of at least two witnesses. The witnesses must also sign the document to confirm that they witnessed the signing.
- The witnesses must be present: The witnesses must be present when the person creating the will signs it. They must also be aware that they are witnessing the creation of a will.
- Chosen witnesses must be independent: The witnesses must not be beneficiaries or potential beneficiaries of the will. If they are, their signature may be considered invalid.
When drafting a typed will, the individual creating the will (known as the testator) must sign it before two witnesses, who must also sign it to verify that they saw the testator’s signature.
Specifically, in British Columbia, this procedure can be completed entirely online. The testator needs to sign at the document’s conclusion, and although not required, it is advisable to also initial every page of the will besides the final signature.
In some instances, someone else can sign on behalf of the testator, provided it is explicitly stated that this action was carried out under the testator’s guidance and in their presence. The two witnesses do not have to sign in each other’s presence; however, the testator must sign in front of both witnesses.
Moreover, the signing sequence is crucial: the testator has to sign or acknowledge their signature before either of the witnesses signs.
The act of cancelling or invalidating a will is equal to a revocation. A will can be revoked in several ways, including:
- Creating a new will: A new will can revoke the previous one if it contains contradictory instructions.
- Destruction of the will: If a person destroys their will with the intention of revoking it, it will be considered invalid.
- Marriage: In some provinces, marriage automatically revokes a will unless the will was created in contemplation of marriage.
The last criterion for a will and testament to be legally recognized in Canada is that it should not be made under undue influence. Undue influence occurs when an individual is forced or manipulated into drafting a will that does not represent their genuine desires.
This can happen when someone is susceptible due to age, health, or mental condition. If a will is determined to have been made under undue influence, it could be deemed invalid.
In Canada, creating a legally binding will involves meeting certain criteria. These include having the mental capacity to make a will, adhering to formal guidelines, ensuring the will hasn’t been cancelled, and preventing undue influence.
Meeting these requirements guarantees their desires are carried out and their possessions are allocated according to their wishes after they pass away. It’s always recommended to seek an estate planning attorney for legal advice when drafting a will to ensure it satisfies all legal necessities.
Do you need the advice of an estate planning lawyer in Ontario? Ontario Wills is here to help. We provide estate planning for discerning clients, often with complex needs such as blended families, disabled beneficiaries, or ownership of businesses and out-of-province assets. Start your planning with us now!