One of the first steps to estate planning is creating a last will and testament. A will also known as a “last will and testament” is a legal document governed by provincial legislation that lists the final wishes of the deceased in how they wish to divide their property.
If the person making the will is a male then they’re known as a Testator. And if female, they’re known as Testatrix. A will typically names an executor, provide guidance on how debts and taxes would be paid, list inheritances, provide guidance on care for minor children and so on. A person dying without a will is deemed to have died “intestate”, discussed below.
Writing a Last Will and Testament
When creating a will, it’s important to be aware of your residency and the property that you might own in other provinces. If you’ve written a will in Ontario and then relocate to British Columbia, the laws of that province will be responsible for settling the estate and dealing with matters such as intestacy, division of assets, family law, etc.
Types of Last Will & Testament
- Holograph Will
- A holograph will is a handwritten will signed and dated by the testator or the testatrix. This type of will is considered to be legal in Canada if the handwriting can be verified.
- English Form Will
- This is one of the most common types of last will & testament, particularly in Canada. Wills are put together by the testator/testatrix and signed by two witnesses.
- Notarial Will
- A Notarial Will is common in Quebec and is drawn up by a notary. It’s usually written in the presence of one witness or two in certain circumstances such as when the testator is blind.
- International Will
- In today’s global environment, people are able to move freely between countries and own multiple properties. International wills deal with property that are in other parts of the world. These types of wills are written and meet specific standards of the Washington Convention Providing a Uniform Law of an International Will (1973). Countries that have accepted the convention include are mentioned below. However, be aware that not all of the countries are enforcing the convetnions.
| Australia | Belgium | Bosnia Herzegovina |
| Canada | Croatia | Cyprus |
| Ecuador | France | Vatican City |
| Iran | Italy | Laos |
| Libya | Niger | Portugal |
| Russia | Sierra Leone | Slovenia |
| United Kingdom | United States |
Vatican City, Iran, Laos, the Russian Federation, Sierra Leone, the United Kingdom, and the United States are all signatories of the treaty.
- Mirror Will
- A mirror will is typically written by spouses that want to have similar terms to the other. It can be particularly important in stating beneficiaries, choice of executors and guardians for minor children. Things can start getting complicated when second marriages come in the spotlight.
- Mutual Will
- A mutual will is similar to a mirror will. The terms and the agreements of the written content are the same but changes cannot be made to a mirror will without the other’s consent.
- Joint Will
- Joint will is a single written document by two or more people, often husband and wife that details how their estate will be settled when they die. Often couples own property jointly and this type of will allows the decisions of estate settlement to be made together.
Choosing an Executor
A last will and testament typically names an executor who will be responsible to carry out the wishes of the testator’s will. The executor could be a single individual or multiple. Depending on the complexity of the estate, it can also be a trust company. It’s important that the executor is someone who has financial acumen and the willingness to be part of the estate settlement process as it could take time and resources.
Some of the tasks that the executor would be responsible for but not limited to:
- Completing applicable forms related to probate
- Detailing the financial assets of the estate
- Settling and debts outstanding with creditors and the Canadian government
- Distributing the assets of the deceased as directed in the will
- Filing the personal and estate income tax returns.
Cancelling a Last Will and Testament
Cancelling the will is also known as “revoking the will” and it could be done at any time. Ways to cancel the last will and testament:
- Creating a new will automatically cancel the previous written will
- Destroying the original copy of the will in addition to any scanned copies
- Marrying or re-marrying after the will is written will revoke the will as it does not make consideration for the spouse. (Marrying in Quebec, Alberta and British Columbia will not revoke a will)
Dying Without a Last Will and Testament
Dying without a last will and testament is known as dying “intestate”. In case of intestacy, the provincial government will appoint an administrator to settle the estate. The administrator has the same powers as the executor. They’ll grant administrative authority by issuing a Certificate of Appointment of Estate Trustee either to:
- Spouse
- Adult Children
- Adult Grandchildren
- Adult Great Grandchildren
- Father
- Mother
- Brothers & Sisters
If there is a conflict of interest, the courts may deviate from the list above which is sorted by order of priority. If the none of the family members wish to deal with the estate then the province will give authority to a public trustee.