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Making a Will

Making a Will

Some legal words used in this article :

beneficiary - a person or organization to whom you leave something in your will.

codicil - a document which changes your original will. Codicils are generally only used to make simple changes, such as changing your executor.

estate - everything you own at your death. It includes property, persona effects and money.

execute - the process of signing the will. The testator and two witnesses must sign the will.

executor - the person you appoint to carry out the terms of your will.

intestate - where a person has died without leaving a will.

real property - land.

revoke - a testator may cancel his or her will at any time. This is called revoking a will.

testator - the person who makes a will ("testatrix" is sometimes used to describe a woman who makes a will).

Do I have to make a will?

No. The law does not say that you must make a will. However, making one should give you peace of mind and make it easier for your family or friends to handle your affairs when you die.

Do I need a lawyer to write my will?

No. You can make up your own or buy a form from a store. However, it is wise for you to get legal advice when making a will. If you hire a lawyer he or she will make sure the will is clear about what you want to happen, make sure the will meets all the legal requirements, and be familiar with a number of standard clauses that can be included in a will to provide for unforeseen events.

If you decide to write your own will, you should have a lawyer look it over to make sure that it meets all the legal requirements.

Who can make a will?

Generally, you must be 19 or older to make a valid will. If you make a will before your nineteenth birthday, when you reach 19 you can re-execute the will or make a codicil which confirms it. Then it will be valid. Also, a married (or divorced) person who is under 19 can make a valid will.

You must be of sound mind. This is often called having "testamentary capacity" . This means that you must know that you are making a will and understand what a will is, you must know what property you own, and you must be aware of the people (such as a spouse and children) you would normally feel you should provide for.

You must have testamentary capacity at the time when the will is made. If you become mentally incompetent after you make a will, it is still a valid will. Testamentary capacity may become an issue with persons who have a mental infirmity or who are very ill. The mental capacity of a very ill person may be affected by the illness, drugs or pain. Making your will while you are in good health may avoid the problem of having your mental capacity questioned.

You must know and approve of the contents of your will. The will may be invalid if you were misled, whether by fraud or simply by accident, or if someone put undue influence on you. Examples of fraud would be where you are persuaded to sign a will but you believe it is some other document such as a land deed or where you are deliberately deceived as to the conduct of a proposed beneficiary and rely on this information and cut the beneficiary out of the will. An example of undue influence would be where someone pressures or forces you to make a will so that he or she can benefit from it.

In such cases a court may rule that either the whole will, or the part which benefits that person is invalid. This situation is most common with a testator who is old and infirm or ill and who is persuaded by a caregiver to make a will in favour of the caregiver.

This is another reason for meeting with a lawyer to discuss your will. This may provide proof that the will was made by your own free choice.

What does a will look like?

A will can be typewritten or handwritten. It does not have to follow a particular style. However, the law sets out some rules which must be followed:

The will must be in writing. It can be handwritten, printed, or typed; It must be signed at the end by you. You must sign the will before two witnesses who must be present at the same time. If you are unable to sign the will you can ask someone to sign it for you in your presence and in the presence of two witnesses. You must tell the two witnesses that the will is yours. The two witnesses must sign the will, in your presence. The witnesses must be at least 19 years old and must not benefit from the will or be married to someone who benefits.

You should mark the date on the will.

After the will is completed, it is wise to initial and number each page so that pages cannot be replaced or removed from the will.

A holograph will is a handwritten will signed by the testator but not witnessed. They are not valid in Nova Scotia.

What goes in my will?

A will contains your instructions about what you want done with your property after you die. The language should be clear and simple, so that no one is confused about what you meant.

A will should have several sections, called "clauses" : They often include:

Revocation
The will should say that you revoke all previous wills and codicils.

Appointment of an Executor
The executor is responsible for carrying out the instructions in the will.

Disposal of Property
This section of the will should say who gets your property and under what conditions. A will only comes into force after your death. It can only dispose of property which you owned at the time of death.

If you are leaving property to someone you may want to provide for the possibility that he or she might die before you. For example, if you leave your property to your niece, do you want her children to inherit it if she dies before you or do you want the property to go to someone else?

Residuary Clause
Generally, wills should include a residuary clause. This clause says who gets the property which remains after all gifts have been paid out or given to the beneficiaries.

If a will does not contain a residuary clause, the remaining property (called the residue) will be treated as if the testator had died intestate. It will be distributed according to a provincial law called the Intestate Succession Act.

Other Clauses
A will may contain other clauses to suit your needs. For example, you may want to recommend a guardian for your children, or create a trust, or set out the powers of the executor.

Should I put my burial wishes in my will?

It is not a good idea. Often the will won't be found or read until after the funeral. Therefore you should tell the person who is likely to arrange the funeral what your wishes are or leave separate written instructions.

Can I do whatever I want in my will?

In most cases, you are free to deal with your property as you wish. However, two laws, the Testator's Family Maintenance Act and the Matrimonial Property Act, place some limits on that freedom.

Testator's Family Maintenance Act
This Act tries to make sure that your dependents are left with money and support whenever possible and if necessary. A child, including illegitimate children and adopted children, and a widow or widower are considered 'dependents' under the Act.

The judge considers all the circumstances of a case in deciding whether to give support to the dependent. They include whether a dependent deserves help (what is his or her character and conduct like?), whether there is any other help available to the dependent, the financial circumstances of the dependent, any services provided by the dependent to the testator, and the testator's reasons for not providing for a dependent in the will. It helps if the reasons are in writing and signed by the testator, or if they are included in the will.

This is not a complete list. The judge may take other factors into account. A dependant who wants to apply for support should talk with a lawyer.

The Matrimonial Property Act
This Act recognizes the contribution of both spouses to a marriage. The Act says that when one spouse dies, the surviving spouse can apply for an equal division of matrimonial property . The surviving spouse must apply to the Supreme Court.

A judge decides what share of the property the surviving spouse should get.

Other Considerations
You may decide to leave your estate to someone other than your closest relatives or you may decide to leave it to some family members but not others. If you do this, it is wise to consult with a lawyer so that he or she can keep a record of your reasons. For example, you might decide to divide your estate between two of your children and leave nothing to a third child. If you don't give your reasons, the third child might challenge your will by questioning your mental capacity.

What about insurance policies?

An insurance policy can say that it is to be paid to a certain person or to your estate. If the insurance money is to be paid to your estate, the money from your policy will be distributed according to the terms of your will. If the insurance money is to be paid to a certain person, the money goes directly to that person. It does not become part of your estate.

How can I change my will?

You should look at your will now and then to make sure it is still up to date. For example, you may have sold or given away some of the property mentioned in your will. You may want to make changes in the will because of births, deaths and marriages in the family.

There are two usual ways to change your will:

(1) You can write a separate document called a codicil. You must sign and witness your codicil in the same way as your will. The opening words of the codicil usually refer to the will that it is amending. It will say that certain clauses of the will are revoked or amended and others are substituted. It should say that apart from these changes, you confirm the terms of the will.

(2) You can make a new will. It may be wise to make a new will if you wish to make major changes in your will or if you have already made a number of codicils. The first clause of a new will usually says: "I revoke all wills and testamentary dispositions of any nature and kind made by me." The most recent will, properly executed, is the one which will be used following your death.

Changing your will by marking or crossing out words in the will often causes problems. It is much wiser to make a codicil or a new will.

You must be of sound mind at the time you make the charges or the new will or codicil may be challenged in court.

How can I cancel my will?

There are four ways to cancel your will. This is usually called revoking a will.

Your will is revoked if you marry, unless you made the will knowing you were getting married. A divorce does not revoke a will.

You can make a written document saying that you want to revoke the will. It must be signed ad witnessed in the same way as a will. For example, in one case the bank manager had the will. The testator became ill and signed a letter to the bank manager which said: "Will you please destroy the will already made out." This letter was properly signed and witnessed, and it revoked the will.

You can make a new will. A new will which is properly executed revokes a previous will. A codicil revokes certain clauses in a will.

You can destroy the will or ask some other person to destroy it in your presence. If your will is accidentally destroyed, for example, by a fire in which you die, a copy of the will can be used because you did not intend to revoke it.

If I made my will in another province, do I have to make a new one if I move to Nova Scotia?

You will not always have to remake your will. However it is a good idea to have it checked over by a lawyer to see that it meets the requirements of Nova Scotia law.

What happens if I die without a will?

When you die without a will you are said to be intestate .

Your estate will be divided according to the rules set out in the Intestate Succession Act. Your property may be distributed in a different way than you wanted.

If you are living in a common law relationship, your spouse may have to go to court to make a claim on your estate or to get financial support. There will be additional expense and delay in settling the estate. This may add to your family s pain and distress. Family members may disagree about how you intended to distribute your property.

The person who will look after your estate must be appointed by a court and may not be someone you would have chosen. If you and your spouse die at the same time and have not chosen a guardian for your children, the person appointed as guardian might not be someone you would have chosen.

The laws relating to intestacy also apply when a person dies partially intestate. This means where you do not dispose of all your property in your will. The part of the estate not dealt with in your will is distributed according to the Intestate Succession Act

Who looks after my will when I die?

Your executor looks after your will when you die.

An executor is the person or corporation you name to carry out the terms of your will. The executor's job is to see that everything in the will is handled properly.

The executor will gather together all of your assets, pay your debts and taxes, and distribute your money and property according to the instructions in your will.

What if I don't name an executor?

If you don t name someone to be an executor in your will, your next of kin will usually ask the Probate Court to appoint someone to fill the executor s role. This person is called an "administrator".

It is best to name an executor in your will because then you can be sure that your estate will be handled by someone you know well and trust. Also, you can give broader powers of administration and discretion to your executor than the probate court will give an administrator.

Who to choose?

Family and Friends
Most people ask a family member or close friend to act as their executor. However, you need to be sure that the person you choose has the time and ability to carry out the many duties of executor.

Looking after an estate can be difficult and time-consuming. Sometimes it can include responsibilities that last for years.

The best executor is a trustworthy, reliable and competent adult. You should consider choosing someone who has some knowledge about business affairs. Choose someone who is likely to outlive you. Choosing someone who lives in the same province as you do may cut down on long distance phone calls and other administrative expenses. Your spouse, a friend, family member or heir may be able to do a good job as executor. Many people choose their spouse or main heir as executor. You may wish to appoint a back-up executor in case your first choice dies, moves away, or for some reason is unable to do the job.

Your lawyer as executor
You can name your lawyer as executor but most lawyers don't act as executors. Before you name your lawyer check that he or she is willing to be your executor.

Professional executors

If your estate is complicated or you don t have a relative or friend who is able to act, you may want to appoint a trust company as executor. You should check that the company is willing to act as executor. If you don't, the company might refuse to act as executor upon your death.

Most trust companies have experience in estate planning. Their advice may help you plan your estate to save tax and to avoid administrative problems. Also, because such companies are strictly regulated, you can be sure that your estate will be handled properly and legally.

If there is a chance that a problem will arise among your heirs, a trust company might be a good choice because it would be an impartial executor.

If you appoint a trust company as your executor, the company may give you free advice on drafting your will and may store it for you.

There can be disadvantages to using a trust company. They usually charge the maximum fee allowable and tend to be conservative investors. They probably won't be as familiar with your assets as a friend or family member would be.

Before choosing an executor, you may also want to think about the time involved in administering your estate. For example, if you want to set up a trust for the care, education and benefit of your children, this would be a long-term commitment for an executor. In a case like this, you may want to consider a trust company rather than someone who might not be able to make such a time commitment, or who may die before the funds in the trust have all been distributed.

Must the executor accept?

No. A person named in your will can refuse to act (this is called "renouncing" ). By refusing, an executor makes it known that he or she does not plan to take on the job and gives up all the rights and responsibilities of the appointment. If the person you choose is not told until after your death, and then he or she refuses, the courts will appoint an administrator. This is why, before you make your will, you should ask the person whom you want to be your executor if he or she is willing to take on the job. If he or she refuses you can appoint someone else.

You can appoint more than one executor (called co-executors ) to share the responsibility. Unless your provide otherwise, the co-executors would have to agree on all decisions and both would have to sign all documents.

This is intended to provide general information only. When you have a legal problem, consult a lawyer.
Courtesy of Richardson's Law Office.

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