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Making Your Own Will

August 30, 2018

 

 

 

Why A Will?

 

Everyone should have a will! The sooner it’s done the better. Why? So your assets go to the people and places of your own choosing. It’s the last gift you make-your final material presence. Sounds dramatic, but is a very important expression of final intent - your last will and testament.

 

You’re Choices:

 

You have two choices. Have your will prepared by a lawyer or do it yourself. You might at first choose to do it yourself. It would be faster and cheaper. You have seen will forms advertised and there is lots of information on the web. How hard can it be? It is harder than most people think. It can be technically difficult and often lead to costly litigation. That means it may either be invalid or end up dissipating the assets you wanted to give.

 

Technical Requirements:

 

DIY wills are only valid if they meet certain requirements. The law that applies is Ontario’s Succession Law Reform Act (SLRA). Section 2 provides:

 

A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

 

Must be handwritten:

 

Such a will must be entirely written in your own handwriting. It is known as a “holograph will”. That leads to several initial problems. First of all is your handwriting clearly legible so that it can be read in its entirety. Second, does printing qualify? Maybe, but the section uses the words “handwritten” not “hand printed”. Thirdly, there can be NO typewritten portions. This means typed by you or found on a pre-printed form you bought or downloaded. It also means and includes any typed document attached to, or referred to, in your handwritten will. The typed portions, wherever found, will have be ignored and of be of no effect.

 

Must be signed in the right place:

 

Secondly, your wholly handwritten will, must be signed by you at the END of the will. That means below all the gifts and directions you make in your will. Any gifts below your signature, or made after your signature is made, will equally be ignored.

 

You must have testamentary capacity:

 

This is a requirement for any will to be valid. It means that you must:

  1. understand the nature and effect of a will;

  2. recollect the nature and extent of your property;

  3. understand the extent of what you are giving under the will;

  4. remember the people you might be expected to benefit under the will; and

  5. where applicable, understand the nature of the claims that may be made by persons you are excluding under your will.

Testamentary capacity or competency, will generally be presumed upon proving a valid will. However, if there are suspicious circumstances shown at the time of writing the will, the presumption will disappear, and those that want the will to be valid must prove capacity. Suspicious circumstances would be matters such as old age, frailty, mental illness, intoxication, the presence of beneficiaries at its making etc. There can be no complete catalogue of suspicious circumstances.

 

It must be a full and final expression of your intention:

 

This requirement comes from case law dealing with letters or memos, often to solicitors from clients, setting out what their will should say i.e. the gifts and to whom.  Your handwritten “will,” must be shown to be an expression of your final intentions on the disposition of your property on death. It must be considered to be a testamentary act, not a memo of thoughts or discussion points. It must be read as a present intention of disposition on death and not point to some future act which would then do so.

 

The onus to prove this requirement is on the person(s) seeking to have the will be declared valid. If they cannot do so your will, even if it meets the requirements set out above, will be invalid. They can do so by the wording of your will or by other extrinsic evidence of your intention.

 

The best evidence is the wording itself. Do you call it your last will and testament or words of similar effect? If you have an existing will did your new will revoke it? Extrinsic evidence is more problematic and is affected by credibility.

 

Subsequent Alterations or Changes:

 

If they are made at the time of writing the will and signing it they would be valid. If made after the will, they need an additional signature referring to them to be valid. Dating the will and any changes is a way of avoiding such difficulties.

 

Can a Court Dispense of these Requirements if I Miss Something:

 

The short answer is no. Your holograph will must comply perfectly with the requirements of the SLRA.

 

Bottom Line:

 

Unless time is short, or you are in a remote location, you are better off having a lawyer prepare your will. The initial cost will ensure the validity of your will and the sanctity of your intentions after your death.

 

Information made available on my site in any form is for information purposes only. It is not, and should not be taken as, legal advice. You should not rely on, or take or fail to take any action based upon this information. Never disregard professional legal advice or delay in seeking legal advice because of something you have read on this website. Every legal problem is fact specific and should be discussed with your legal or paralegal advisor. If you cannot afford such advice various free legal clinics exist throughout the province and country assuming you qualify financially.

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