What Constitutes a Valid Will?

A Will does not have to be prepared by a lawyer to be valid. Getting it right is tricky so it is always a good idea to err on the side of caution.

A holographic Will is a testamentary document that is wholly in the handwriting of the testator. It must be dated and signed. The difficulty with preparing your own Will in this fashion is it is hard to hit every point that a Will should cover. A phrase like “I leave all my worldly possessions to my sister” together with a date and a signature could be a valid Will. It would need to be authenticated as being in the handwriting of the grantor, with evidence sufficient for the court to confirm the document is in fact a valid Will. The problems arise with who is to call in the assets of the deceased and distribute the “worldly possessions” to the sister. Naming an executor is just one example of an important, but often forgotten, Will clause. It would be an even bigger problem if the grantor has more than one sister!

The cost of having a holographic Will authenticated and accepted by the court far exceeds the cost of getting your Will professionally drafted and executed (signed).

As for the do-it-yourself Will kits, please consider the risk of getting something wrong vs the savings of having your Will professionally drafted. Completing the fill-in-the-blank formulae and having it signed in compliance with the requirements is harder than it first appears.

The failure to sign a Will correctly may invalidate the document completely. Even if you have completed the document properly, by choosing the wrong witnesses or by not having them both witness your signature at the time you sign the document your Will may be void. A beneficiary will be excluded from any inheritance if they sign as a witness to your Will.

We have all heard news stories about wealthy elderly or sick people being taken advantage of by caregivers or children. The rule that a beneficiary may not be a witness was enacted to avoid situations where a potential beneficiary could put pressure on a vulnerable party. The person whom you intend to name as your executor also is excluded as a suitable witness.

When your Will is prepared it is good to name an executor and an alternate. The primary reasoning for this is that circumstances change. Your named executor may not be in a position when you die to take on the job of managing your estate. A well drafted Will permits them to renounce their right (say no) to manage the estate in favour of a second named executor without causing chaos. Not naming a secondary or alternate executor is another mistake commonly made when a lawyer is not involved when a Will is drafted.

Naming a Guardian for your children should something happen to you is the most important decision your Will covers. Again, it is important to correctly name a guardian with an alternative plan should circumstances change. A well drafted Will should take into consideration all the possible alternatives that are acceptable. Getting the wording right is important to ensure your children do not become objects for your family to fight over.

Please contact us to get a quote to draft your Will.