Who can prepare a will
The person making a will is referred to as the will-maker. To make a will, the will-maker must:
- Be age 16 or over.
- Be mentally capable of making a will.
- Freely agree with what the will says when they sign it. If it’s proven in court that someone pressured the will-maker to sign, the will won’t be valid.
Try to prepare a will when you’re still in good health. By law, you need to be mentally capable of making a will. If it’s proven that you were not capable, the instructions in that will can't be followed.
You need to be mentally capable of making a will for it to be legal. You must understand:
- The nature and effect of the will.
- In a general way, the extent of the property you own that can be distributed through the will.
- How property will be distributed.
- The implications for the people who are to receive property, as well as the legal and moral claims of certain other people you haven’t named. For example, if you leave your child out of the will, do you appreciate the effect of that decision?
Your capability can be affected by illness, an accident, or drug treatment.
When you should prepare a will
You can prepare a will at any time. But it’s especially sensible to do so when you marry or start a family, or if you own or inherited significant assets, like a house. If you want to leave your belongings to the special people in your life, it’s a good idea to have a will.
Requirements of a valid will
If a will is proven not to be valid in court, then it can’t be followed. And all your work is for naught.
For a will to be valid, it must be in writing. It can be typed or handwritten. You must also date it when you sign it.
Typically, a will has several sections:
- Appointing an executor. The first section of the will appoints one or more executors. This is the person responsible for carrying out the instructions in the will. The will should say what the executor can and can't do.
- Distribution of the estate. The will says who receives your assets and personal belongings, and under what conditions. The people you give assets to are called beneficiaries.
- Minors. In your will, you should name a guardian for any minor children you have, and provide some money for the guardian to cover the costs of raising them. You should also create a trust for gifts you leave to any minor beneficiaries. Otherwise, their share of the estate may need to be paid to the Public Guardian and Trustee, who will hold onto it for them in trust until they turn 19.
- Other details. The will can include other details, as you wish and depending on your circumstances.
- Signatures. The last section of the will includes the signatures of the will-maker and witnesses.
Your will should be specific
“I have no spouse or children of my own. I want to leave my belongings to my niece after my death. In my will, I wrote her full name and relationship to me: '...to give the residue of my estate to my niece, Ada Chen....'"
– Lin, Vancouver
Your instructions in the will should be crystal clear. Avoid vague statements like: “I wish to leave everything to my ‘best friend,’ ‘my cousins,’ or ‘my family members.’”
It’s usually a good idea to say exactly who the beneficiaries are, by name. But consider what will happen if circumstances change. For example, you may say in your will “I give the residue of my estate to my grandchildren Francis and Javier.” If you have more grandchildren, and don’t update your will, your other grandchildren will miss out. You may choose to say “I give the residue of my estate to all of my grandchildren who are alive at the date of my death.”
“I want my son Michael to get my grandfather’s gold watch which was handed down to me. In my will, I included that gift: '...to transfer my Omega gold watch to my child, Michael Cortez…'"
– Paulo, North Vancouver
You don’t need to write down every item you own. You only need to be specific if you want to give a particular asset (such as your home or an item of sentimental value) to a particular person. Or you may want to leave a specific amount of cash to someone.
The amount left over after debts and taxes are paid and specific gifts are distributed is called the residue of the estate. In the will, you say who gets the residue, and how much.
“In his will, Grandpa gave a $20,000 gift to each of my brothers Kevin and Jojo. The residue was to go to me. The estate was worth $100,000, so I thought I’d end up with way more than my brothers. But it turns out Grandpa had a huge tax debt that he never paid. After the executor paid out Kevin and Jojo’s gifts, the tax debt, and lawyer fees, I was only left with about $5,000 in residue."
– Zadie, Port Hardy
What your will does not include
“A dear friend of mine got sick and asked if I could help out with simple tasks like groceries and paying bills. She chose to add me to her everyday bank account as a joint holder. This made handling the money easier. But she was also really grateful for my help. She wanted me to have the money in this bank account when she passed away. When she died, the money in the joint bank account passed to me.”
– Sara, Powell River
A will doesn't deal with everything you own. For example, it doesn’t cover property you own in joint tenancy with someone else, such as a home or joint bank account. When you die, any property you own as a joint tenant usually becomes the property of the surviving joint tenant(s). In most cases, this property isn’t included in your estate. It’s said to “pass outside the will.”
You can also own property with someone else as a tenant-in-common. When you die, your share doesn’t automatically go to the other owner.
Say you own a family cottage with your siblings. If owned as tenants-in-common, you can pass your share to whomever you want, through your will. Your share won’t automatically go to your other siblings when you die.
If you’ve designated a specific beneficiary to receive proceeds from an asset, this asset won’t be included in your estate, either. The exception is if you name your estate as the beneficiary. Common examples are life insurance policies or retirement benefit plans. When you die, the bank or trust company directly transfers the asset, or pays it out, to the person you named.
The proceeds of life insurance policies and benefit plans don’t form part of your estate. Even so, you can choose to designate (name) a beneficiary of these kinds of assets, either in your will or in the policy itself. What if you change your mind and want a different person to receive the proceeds? Any new designation you make will replace any designations you made earlier.
Who you can leave your estate to
You’re generally free to leave your estate to whomever you want. Many people choose to give their money and things to family members, relatives, charities, or friends.
Consider all possibilities. What if your spouse dies before you? Are you likely to have more children or grandchildren in the future? What do you want to happen if one or more of your children don’t survive you?
Be aware though that your spouse or child can dispute your will in court if they feel you haven’t adequately provided maintenance and support for them. Spouse includes a common-law spouse. That’s someone you’ve lived with in a marriage-like relationship for at least two years. A separated spouse can’t dispute your will.
Relatives other than a spouse or a child generally can't ask the court to re-write the will simply because it's unfair. But they may be able to challenge the will for other reasons.
If you want to leave a spouse or child out of your will, explain this in a separate document or letter you keep with your will. You need to show that you’ve at least considered them and your obligation to provide for them. This doesn’t guarantee they won’t receive something if they dispute the will in court. If you’re considering this option, you should seek legal advice.
Wishes for funeral services, burial, or cremation
Most wills don’t cover details relating to the funeral service, burial, or cremation. Some do. You should discuss your preferences with your executor or family. Be aware that any wishes you express about your desired funeral or memorial service won’t be binding on the executor, even if expressed in your will.
If you write your preference for burial or cremation in your will, that preference is binding on the executor — except if following it would be unreasonable, impracticable, or cause hardship. The same applies if you set out your preference for burial or cremation in a contract for cemetery or funeral services. But if you express your preference in another way, such as through a letter or simply telling a loved one, that’s not legally binding.