How do I know if my will is legally binding? Will it hold up in court? Do I need a lawyer or notary to make my will legal? What happens if my will is contested?
These are common questions we hear from Canadians, and ones that are important to ask as you create your estate plan. In this article, we explain what makes a valid will and why a will can be contested so you can feel confident in your estate plans.
What is a will and why is it important?
A will is a legal document that outlines how you want your estate to be distributed once you’ve passed away. Your estate includes all your assets— anything you possess of financial or other value. Exceptions include jointly owned assets, pensions or life insurance policies that have a specific death beneficiary.
From your estate, you can choose to leave specific gifts to individuals, as well as legacy donations to charities and organizations that are close to your heart. Anything left over is called your ‘residual estate,’ or simply ‘the residue.’ The most current version of your will, if executed wholly and correctly, should override previous versions of your will or verbal agreements you may have made during your lifetime.
What makes a will legal in Canada?
While there are nuances in provincial laws and language, this is the general criteria to create a legal will in Canada:
- It must be written (except in British Columbia).
- You must be over the age of majority in your province and of sound mind (except in BC and if you meet other specific circumstances).
- If the will is typed, you must sign your will with two witnesses present and they must sign to confirm they have witnessed your signature. The testator’s (will maker's) signature should be placed at the end of the document.
- The signature or the acknowledgement of the signature by the testator must come before the signature of either witness.
- In most provinces, the two witnesses cannot be beneficiaries of the will.
- Valid Witnesses: Your witnesses cannot be a named executor or their spouse and cannot be a named beneficiary or their spouse. Learn more about choosing a witness.
- The signatures must be at the very end of the will.
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Testator’s capacity in making a will
Testator's capacity refers to the legal and mental ability of a person to make a valid will. A testator must generally be:
- At least 18 years old (or the age of majority in their jurisdiction)
- Of sound mind, meaning they understand the nature and consequences of making a will, including the extent of their assets and potential claims on their estate
Each Willful document created comes with a detailed instruction page to make sure all the legal requirements are followed so you can be certain that your last will and testament will be legally valid.
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Do I need a lawyer or notary to make a will?
You don't need a lawyer or notary to make a will in Canada! There are many ways you can make a legal will, depending on where you live and your unique life situation. Some common ways to make a legal will in Canada include using an online will platform or DIY will kits.
There are few things to know about making a will without a lawyer:
- As long as your will complies with your provincial laws regarding valid wills, an online will carries the same legal weight as one created by a lawyer
- As long as your will is written entirely in your own handwriting and signed by you when you are of sound mind, you do not need a lawyer to create a will
- In the case of a typed will, it must be witnessed correctly to be legally valid (details below)
- Any will can be contested, regardless of how you make your will — even a will created by the most expensive estate lawyer in Canada can be contested
If your last will and testament is contested, it’s up to the courts to decide whether your wishes will be upheld.
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Should I get legal advice for estate planning?
When it comes to estate planning, some people turn to estate lawyers in search of legal advice. Identical, self-made or computer-generated documents that follow the provincial requirements are just as legal as those prepared by a lawyer.
However, there are some different scenarios where you may benefit from advice on a complicated matter (i.e. what to consider when dealing with foreign property, if you have a blended family, you are under legal obligation to pay support, etc.) and might need customized language beyond what is typically standard in estate planning. This will require you to pay legal fees.
Some people liken it to doing your taxes. If you have a straightforward return to file, you can choose to use:
- Tax forms provided by your provincial government to mail in yourself
- Free or paid tax software you can do your own taxes and digitally file yourself
- Visit an accountant or tax specialist to have them file on your behalf
While each option depends on the needs, concerns, and comfort level of the individual, most people will not need a tax specialist. Similarly, most people do not need a lawyer to prepare a will and other estate planning documents like power of attorney for property and personal care.
The legality of a will is based on the final document and correct witnessing and signing, not on who prepared it.
✍️ Does my will need to be notarized? Read More →
What is probate and when is it required?
Probate is the process of a will being accepted as valid by the court system. It is initiated by the will’s named executor/estate trustee, or their legal representative, “applying for probate” to the applicable provincial or territorial court system. Some estates do not need to be probated and can be handled informally, however the probate process is required if:
- The estate contains any real estate held solely in the name of the testator
- The estate contains shares in a publicly traded company
- The estate contains financial accounts held solely by the testator (not joint with another party)
If a will goes through probate for any of these reasons, it does not mean it’s being contested. The probate process also comes with its own fees. Check out our article on calculating probate fees in Ontario.
Looking for what you need for probate in a specific province? Check out our guide to probate in British Columbia.
Will my will hold up in court?
Contesting a will involves a legal proceeding in which arguments are made in court to have the will made invalid. Contesting a will must be initiated by a person who believes it is invalid or unlawful. It is important to note that any will can be contested by family members or other individuals, regardless of how it was prepared.
A will prepared by the testator (the author of the will) that is either handwritten (holographic will), created using a store-bought Canadian will kit, an online platform, or even one prepared by a lawyer can all be contested if someone chooses to do so. What most people worry about when preparing their own will is whether their final wishes will be overturned by the courts.
Contesting a will involves a lot of time, money and evidence to support the claim being made. Every case is different, but the most common reasons for contesting a will include:
Undue influence
This is when someone believes a person (or persons) has pressured the testator (author of the will) to change their will. This occurs most often with vulnerable people like the elderly or those with a cognitive impairment.
Lack of mental capacity
This is when someone believes that the testator is unable to make their own decisions due to an illness, disability, or mental health problem.
Problems with the will itself
This is when someone challenges the validity of the will because of contradictions in language, improper witnessing or lack of signature.
A family member is cut-off
A cut-off family member may contest a will and could claim undue influence or lack of mental capacity. This is different from a spouse or child who may be entitled to support under provincial law and can make a dependant support claim.
Interpretation of the will
This is when a clause is vague and gives rise to one or more conflicting meanings.
Fraud or forgery
Also falling under undue influence. This is when someone uses lies, threats, etc to get the testator to change the way they distribute their assets or forges their signature to benefit from the estate.
When someone decides to contest a will, it doesn’t mean it will be overturned. It can take the court a long time to look at all of the facts and make a decision.
While the majority of wills are upheld, if the court decides a will is invalid it can either put an earlier will in place if one exists or distribute assets according to government intestacy laws.
Legal wills in different provinces
The requirements of a legal will may be slightly different in each province or territory. Learn more about the requirements of a will in each province/territory:
- Ontario - Succession Law Reform Act
- Manitoba - The Wills Act
- Saskatchewan - The Wills Act
- Alberta - Wills and Succession Act
- British Columbia - Wills, Estates and Succession Act
- Quebec - Succession Duties Act
- Newfoundland and Labrador - Wills Act
- New Brunswick - Devolution of Estates Act
- Nova Scotia - Wills Act
- Prince Edward Island - Probate Act
- Yukon - Wills Act
- Northwest Territories - Wills Act
- Nunavut - Wills Act
Other common questions about legally binding wills in Canada
Is a handwritten will legal in Canada?
Yes, a handwritten will is legal in Canada as long as the will is signed by the testator and witnessed correctly.
Are digital wills valid in Canada?
British Columbia is currently the only province in Canada that recognizes electronic wills as valid. This legislation came into effect on December 1, 2021.
This means that in BC, you can create your will online, digitally sign it, have it virtually witnessed, and then store it on your device or in the cloud. Digital wills make estate planning more accessible and affordable, so we hope more provinces get on board with making digital wills legal soon!
Does a will need to be notarized in Canada?
No, your will does not need to be notarized to be considered legally valid in Canada. It is a common misconception that you need a notary or lawyer to make a legally valid will in Canada.
What makes a will invalid in Canada?
For a will to be valid in Canada, it must be written on a physical copy and signed by the testator (author of the will) who must be over the age of majority in the province they reside and of sound mind.
If a will does not meet these requirements, it will be considered invalid in Canada.
Create a legally valid will today
Hopefully, this article answered some of your questions regarding the legal requirements for a valid will in Canada. It is a common misconception that wills must be prepared by a lawyer to be valid. The truth is that wills created by any medium will be valid, so long as they meet the requirements listed above. For most people with a straightforward estate plan, wills created on an online platform like Willful are convenient and will be 100% legally valid in Canada.
Creating your legally-valid will is easier than you might think! With platforms like Willful, you can easily create your own will online in less than 20 minutes. We'll walk you through the process and provide you with everything you need to know to ensure your document is legally binding. Start your will for free today.
