What is a Will and What Happens If I Don’t Have One?

 In Wills and Estates Law

A will is a document that provides instruction and direction on how you wish your estate to be dealt with upon your death.  A will may include such instructions as the appointment of estate trustees (also commonly referred to as executor), instructions for the gifting and disposition of your property, appointment of guardians for minor children (if necessary) and the creation of trusts.  Depending on the nature and extent of your assets, as well as your personal and family circumstances, a will may be simple or complex.

Under the Succession Law Reform Act, there are formalities required to ensure that a will is valid.  A will must be in writing and, subject to specific exceptions for members of forces on active service and holograph wills, a will is not valid unless:

  1. It is signed by the testator (the person making the will) or by some other person in his or her presence and by his or her direction;
  2. The testator makes or acknowledges the signature in the presence of two or more attesting witnesses who are present at the same time;
  3. Two or more of the attesting witnesses subscribe the will in the presence of the testator.

Members of the forces who are on active service may make a will by a writing, which is signed by him or her or by some other person in his or her presence and by his or her direction without any formality or any requirements of the presence of or attestation or signature by a witness.  The legislation also provides that a testator may make a valid will wholly in his or her own handwriting and signature without formality and without the presence, attestation or signature of a witness.  This is called a holograph will.

The creation of a valid will allows the testator to set out exactly how their property will be distributed on death.  If you do not have a valid will, the disposition of your estate will be guided by the portion of the Succession Law Reform Act dealing with the distribution of an estate when there is no will, referred to as intestate succession.  This portion of the act sets out how your property will be divided, depending on whether you die leaving a spouse and/or children or only next of kin.  If there is no next of kin, the property of the estate becomes the property of the Crown.  Without a will in place, you lose control of how your property is distributed upon your death and it may be distributed in a manner that you would not have wanted.  There is also a much greater chance that family members left behind will have to resort  to litigation to resolve disputes about the estate.

For individuals with minor children, a will importantly includes the appointment of guardians for minor children.  As any parent knows, ensuring that your children are properly cared for in the event of an untimely death is of the utmost importance.  Ensuring that your wishes are stated, will help to avoid potential disputes among family members regarding your wishes.

In addition to the loss of control over the distribution of your property, if you die without a will, you will lose the opportunity to appoint an estate trustee.  The job of the estate trustee is an important one and the lack of appointment can create uncertainty and conflict for those left behind.  Your estate may end up being administered by someone you would not have wanted dealing with your estate.

Lastly, a valid will also provides an opportunity for effective estate tax planning, which ensures that more money will flow to the beneficiaries of the estate.

Regardless of the size of your estate, having a will in place ensures that your estate is dealt with according to your wishes and provides certainty for family members left behind.

This blog post was written by Kate Wright, a member of the Family Law, Wills and Estates and Litigation teams.  She can be reached at 613-369-0383 or at kate.wright@mannlawyers.com.

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