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.
Try to prepare a will when you’re still in good health. By law, you need to be mentally capable of making a will. If it’s proven you weren’t mentally capable of making a will, the will could be challenged.
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.’”
”I have no spouse or children of my own. I want to leave my belongings to my niece after my death. In my will, I wrote her full name and relationship to me: ‘...to give the residue of my estate to my niece, Ada Chen....’”
– Lin, Vancouver
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.
”I want my son Michael to get my grandfather’s gold watch which was handed down to me. In my will, I included that gift: ‘...to transfer my Omega gold watch to my child, Michael Cortez…’ I left out any mention of my other watches or jewelry, as they weren’t special in any way.”
– Paulo, North Vancouver
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.
The proceeds of life insurance policies and benefit plans do not form part of your estate. Even so, you can choose to name (or designate) a beneficiary of these kinds of assets either in your will, or in the policy itself. What happens if you change your mind and want a different person to receive the proceeds? Any new designation you make will replace any designations you made earlier.
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.
If you want to leave a spouse or child out of your will, explain this in a separate document or letter you keep with your will. You need to show that you’ve at least considered them and your obligation to provide for them. This doesn’t guarantee they won’t receive something if they dispute the will in court. If you’re considering this option, you should seek legal advice.
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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