Preparing a Will

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Stephen Hsia in January 2019.

You can prepare a will on your own, or have a lawyer or a notary public help you. Even if your will is simple, there are rules that must be followed for it to be valid.

Legal requirements for a will

If a will isn’t valid, a court may not grant probate and your wishes may not be honoured.

For a will to be valid, it must be in writing — either typed or handwritten. It must have the date on it. It must also be signed by the will-maker and two witnesses. They must both be present and sign the will in front of you.

Who can prepare a will

The person preparing a will is referred to as the will-maker. The will-maker must:

• Be age 16 or over.
• Be mentally capable of making a will.
• Freely agree with what the will says when they sign it. If it’s proven in court that someone pressured the will-maker to sign a will, the will won’t be valid.

When you should prepare a will

You can prepare a will at any time. But it’s especially sensible to do so when you marry or start a family. If you want to leave your belongings to the special people in your life, it’s a good idea to have a will.

You need to be mentally capable of making a will for it to be legal. You must understand:

• The nature and effect of the will.
• In a general way, the extent of the property you own that can be distributed through the will.
• How property will be distributed.
• The implications for the people who are to receive property, as well as the legal and moral claims of other people you haven’t named who may nonetheless have an interest. For example, if you leave your child out of the will, do you appreciate the effect of that decision?

Your capability can be affected by illness, an accident, or drugs.

Elements of a will

Typically, a will has several sections:

• Appointing an executor: The first section of the will appoints the executor. This person is responsible for carrying out the instructions in the will. The will should specify what the executor can do.
• Distribution of the estate: The will says who receives your assets and personal belongings, and under what conditions. The people to whom you give assets are called beneficiaries. You can give people specific gifts of property or cash. The amount left over after debts and taxes are paid and specific gifts are distributed is called the residue of the estate. In the will, you say who gets the residue, and how much.
• Minors: In your will, you should name a guardian for any minor children you have and provide some money for the guardian to cover the costs of raising children. You should also create a trust for gifts you leave to your minor children. Otherwise, their share of the estate may need to be paid to the Public Guardian and Trustee, who will hold their share in trust until they turn 19.
• Other details: The will can include other details, as you wish, and depending on your circumstances.
• Signatures: The last section of the will includes the signatures of the will-maker and witnesses.

Your will should be specific in its details

Your instructions in the will should be crystal clear. Say exactly who the beneficiaries are, by name. Avoid vague statements like: “I wish to leave everything to my ‘best friend’ or ‘my cousins.’”

You don’t need to write down every item you own. You only need to be specific if you want to give a particular asset (such as your home or an item of sentimental value) to a particular person.

What your will does not include

A will doesn’t deal with everything you own. For example, it doesn’t cover property you own in joint tenancy with someone else, such as a home or joint bank account. When you die, any property you own as a joint tenant usually becomes the property of the surviving joint tenant(s). In most cases, this property isn’t included in your estate. It’s said to “pass outside the will.” On the other hand, your share of property you own with someone in tenancy-in-common will be included in your estate.

If you’ve designated a specific beneficiary to receive proceeds from certain assets, this asset won’t be included in your estate, either. Common examples are life insurance policies or retirement benefit plans. When you die, the bank or trust company transfers the asset, or pays it out, to the beneficiary you named.

Who you can leave your estate to

You’re generally free to leave your estate to whomever you want. However, your spouse or child can dispute your will in court if they feel you haven’t adequately provided proper maintenance and support.

The court can modify a will in the interest of fairness. The court considers factors such as the financial circumstances of the person challenging the will (and of the other beneficiaries), the size of the estate, and the relationship between the will-maker and their spouse or child.

Separated spouses cannot dispute your will. Other relatives who are left out also generally have no claim.

Wishes for funeral services, burial, or cremation

Most wills don’t cover details relating to the funeral service, burial, or cremation. Some do. You should discuss your preferences with your executor or family. Be aware that any wishes you express about your desired funeral or memorial service will not be binding on the executor, even if expressed in your will.

If you write your preference for burial or cremation in your will, that preference is binding on the executor — except if following it would be unreasonable, impracticable, or cause hardship. The same applies if you set out your preference in a contract for cemetery or funeral services. If you express your preference in another way, such as through a letter or simply telling a loved one, then that preference is not legally binding.

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