Your will is one of the most important documents you’ll make as an adult. In it, you can choose an executor for your estate, name beneficiaries to inherit assets, appoint guardians to look after your minor children or pets, and even document your funeral arrangements and burial wishes.
But what shouldn’t be included in your Canadian will? In this article, we’ll discuss things you should never include in your will and how to ensure your will is legally valid and perfect for your estate planning needs.
12 Items to Never Include in Your Will
The type of legal will you choose determines the level of flexibility in what you can include.
For example, a will kit is a fill-in-the-blank document that restricts you from adding anything additional to your will when you fill it out. Whereas a holographic will, or handwritten will, has no restrictions at all in terms of what you can put down. The perfect middle ground would be a custom online will platform like Willful, which is affordable and guides you through all the necessary steps to creating your will properly.
For more complex situations, an estate lawyer can provide legal advice for wills and draft a customized will, though this is the most expensive type of will you can make in Canada.
Use Willful and make your will worry-free →
Regardless of how you create your will, there are some things that should never be included:
Assets with designated beneficiaries
Your last will and testament documents your wishes about your estate. But assets with beneficiary designations are types of assets that don’t go into your estate. Instead, they pass directly to the named beneficiaries, avoiding your estate and probate altogether. This means they can’t be included in your will.
These types of assets include:
- Personal property with joint ownership
- Life insurance policies
- Registered retirement savings plans (RRSPs)
- Registered education savings plans (RESPs)
- Tax-free savings accounts (TFSAs)
- Pension plans
Here’s a breakdown of what each of these are and what happens to them after you pass away.
Note: If you have one of these assets, like a TFSA, but don't have a designated beneficiary for it, the proceeds will become part of your residual estate.
1. Personal property with joint ownership
Personal property with joint ownership refers to assets like bank accounts, vehicles, or real estate held jointly by two or more individuals. These assets are most often held between spouses, partners, or family members.
When one owner of a jointly-owned asset passes away, the asset typically passes over the deceased’s estate and goes directly to the surviving owner(s) through the right of survivorship.
2. Life insurance proceeds
Life insurance policies are contracts that pay out a sum of money upon the policyholder's death.
If you owned a life insurance policy and named a beneficiary for it, the proceeds are paid directly to the designated beneficiary named in the policy when you pass away.
7 life insurance tips for the first-time policy buyer →
3. Registered retirement savings plans (RRSPs)
RRSPs are tax-deferred retirement savings accounts in Canada.
If you have an RRSP and pass away, the full value of it is typically transferred directly to your named beneficiary or successor holder instead of going into your estate.
4. Registered education savings plans (RESPs)
An RESP is a long-term tax-advantaged investment account designed to help people save for a child's education after high school.
If you’re the sole subscriber of an RESP and you pass away, the RESP closes, becomes part of your estate residue, and any matched government funds would need to be repaid. And in your will, you can’t name a new RESP beneficiary.
However, you can state in your will that the RESP should remain open, which protects the child’s funds and the government’s contribution to their plan.
Learn more about RESPs and estate planning →
5. Tax-free savings accounts (TFSAs)
TFSAs are tax-advantaged savings accounts in Canada. They’re a great investment option for people who want to invest their money but still be able to access it if they ever need to.
Instead of going into your estate, your TFSA can be transferred tax-free to your designated successor holder (usually a spouse) or paid out to named beneficiaries when you pass away.
6. Pension plans
Pension plans are retirement income arrangements provided by employers or self-employed individuals.
If you are a pension holder and pass away, your pension benefits are usually paid directly to your designated beneficiary or surviving spouse, depending on the plan's terms.
Behaviour Requests
You cannot enforce how your beneficiaries or guardians behave, only what their role or inheritance is.
7. Beneficiary care of asset(s) or conditional gifts
Generally, once you gift an asset to a beneficiary, the beneficiary becomes its new owner. From that point forward, what they choose to do with the asset is their decision.
As an example, the car you gift your sibling in your will becomes theirs. They can paint it, change the upholstery, sell it, or leave it in a scrapyard. The decision is theirs.
8. Guardian’s care of dependants
In your will, you can name guardians for your minor children or pets. But you cannot dictate how those guardians care for those dependants by writing things in your will such as “My child must remain in my birth city, Toronto” or “My dog may never be housed with other dogs.”
While you can leave assets for guardians, a testamentary trust for children, and a pet trust for pet guardians, dictating how guardians behave can be hard to enforce.
As such, you should choose guardians wisely and communicate your wishes with your appointed guardians as soon as you can so you can discuss whether they’re the right choice.
Illegal or Unethical Requests
Your will cannot force anyone to do anything that is illegal, unethical, or immoral. The appointed persons in your will, like your executor, guardian, or beneficiaries, have the right to decline their role or inheritance, which is why naming backups is always a good idea.
9. Illegal requests
Any requests in a will that go against the law are unenforceable and can potentially invalidate parts of or the entirety of your will. Courts will not carry out instructions that violate the law, which could lead to:
- The entire will being declared invalid, which means your estate will be distributed based on the inheritance laws of your province
- Specific clauses of your will being struck down
- Delays in probate, estate administration, and inheritance to beneficiaries
10. Unethical requests
Unethical or immoral requests should not be included in your will, as they can cause significant distress to your beneficiaries and executors. Such requests may:
- Create conflicts among family members or beneficiaries
- Place executors in difficult positions, forcing them to choose between honouring the deceased's wishes and maintaining ethical standards
- Damage your reputation posthumously
Information about your digital assets
11. Passwords and account security information
If your estate goes through probate, your will becomes a public document. This means that if you included any information about your digital assets in a will, such as passwords or security logins, that information would be available to anyone who looked at the will.
Instead of adding this information to your will, consider adding it to your asset list.
More tips on how to prepare your online accounts for the future →
Business assets and information
12. Business interests or relevant business information
For complex business interests, it's often better to create a separate succession plan rather than include these details in your personal will. This allows for a smoother transition and avoids potential delays due to probate.
Can you include funeral wishes in your will?
Unlike some will kits or other online will platforms, Willful allows you to add your funeral or burial wishes to your will. This is great because it gives you a place to document your wishes for your estate executor and your loved ones to find.
But it’s important to remember that these are more wishes than mandates. Unlike your documented wishes about how to distribute your assets, your executor is not legally obligated to follow your funeral wishes, though the best practice is that they do, especially if those wishes are also documented in the will or were conveyed prior to your death.
Learn more about funeral arrangements and burial wishes in your will →
What is the biggest mistake when making a will?
Here are some common pitfalls to avoid when drafting your will to ensure it's legally valid:
- Failure to execute your will properly. For your will to be legally binding, it must meet all signing and witnessing requirements of your province. You must always sign your will, and for most will types, two witnesses must also sign it. At Willful, we provide detailed instructions to help you make your will correctly.
- Attempting to write a will for someone else. A will is only valid if it's written by the testator, who must be of sound mind. You cannot create a legally binding will on behalf of another person, even if they are your family member, spouse, or partner.
- Storing the will online outside of British Columbia. You can only sign, witness, and store your will digitally if you’re in BC. In all other provinces, only the original, physical copy with wet signatures is legally valid.
- Failing to inform your executor of your will's location. If no one knows where your will is stored, it can create complications after your passing. Make sure your executor is aware of the location of the original copy.
What causes a will to fail?
If you’re writing a holographic will, be careful not to contradict yourself, which is the most common way that holographic wills fail.
Other than that, a will can fail if it is deemed not to be legally valid. This means the testator has been proven to be any of the following:
- Not in sound mind, therefore lacking the necessary capacity to make a will;
- Under the influence of fraud, where fraudulent activities contributed to the testator making their will, or the will itself is a forgery;
- Influenced or coerced by someone else to make their will a way that does not reflect their wishes;
More commonly, a will can fail if it is not properly executed, which includes signing and witnessing.
Learn about the legal requirements for execution in your province →
Make your will stress-free
It’s important to remember the legal requirements for your will and avoid making will mistakes. Willful makes it easy by guiding you through the will-making process through a series of straightforward questions. Plus, because your Willful will is tailored to your personal estate, you’ll get instructions on how to execute your will properly once you download your documents!
The cherry on top? You can change your will anytime, anywhere, for free. Just log back in, make your updates, and execute your will again.
