In my Estate Planning workshops the most popular question is always around hand written Wills or Wills created from these $14.95 Will kits you can buy at the grocery store.
Two kinds of wills
Wills are very important. The last thing you want is to die without a Will. The laws that apply to the making of a Will vary from province to province. They generally apply based on where the Will was drafted and in which province the person making the will (also know as the ‘testator’) was living at the time of death.
Basically there are two kinds of wills; a Formal Will and a Holographic Will. Both are legal and valid.
1. Holographic Will
A holographic Will is the classic do-it-yourself Will. It is a Will that is handwritten. The entire Will must be in the handwriting of the testator; a typed Will with testator’s signature is not accepted as a legal holographic Will. Alberta is one of the provinces in Canada that recognizes handwritten Wills. Saskatchewan, Manitoba, Ontario, Quebec, New Brunswick and Newfoundland are the other provinces. I find it interesting that holograph Wills do not have to be witness.
2. Formal Will
A formal Will is a Will typed out. This includes Wills drafted by lawyers but also Wills created from Will kits that you can buy. An audio recording or a video are not valid and accepted Wills except maybe in the movies.
The testator must be mentally capable and cannot be a minor.
The Will must be dated and signed. It must also be witnessed by 2 witnesses, present at the same time, who attest that the document is the Will of the testator and bears his or her signature. The witnesses to the Will should be of legal age and cannot be beneficiaries of the Will or spouse of the testator.
Do-it-yourself will or hire a lawyer
Some people say you should never write your own Will. They are usually right. There is really only one situation where it is OK to write your Will without professional help: you have, and always will have, virtually no assets.
Hand writing your Will, or event using a preprinted “Will kit” can set the stage for a potentially expensive and problematic estate settlement. Banks, government agencies, lawyers and the courts are rightfully wary of hand-written Wills. The cost of interpreting a hand-written Will by a lawyer and a court is more expensive than paying for a properly drafted Will in the first place.
According to Marvin Toy, co-author of Smart Tips for Estate Planning, “If you want anyone to benefit from your estate, then hiring a lawyer to write your Will is money well spent. A well-written Will that is customized to your circumstances is a document that can often suit your needs for many years, or even decades.”
The key is to hire a qualified and experienced lawyer to help you, one who specializes in Wills, trusts and estates. Marvin cautions people in hiring a lawyer who does not specialize in these fields, “Some lawyers will happily draft your Will for you – right after handling your divorce, helping you buy your house, setting up your corporation, reviewing your taxes, and helping you with your car accident. These lawyers are generalists, not specialists.”
Marvin also expresses extreme caution when it comes to using trusts, “Due to the fact that most people have very little experience with trusts, no one should ever attempt to create a trust in a Will or in a deed of trust without the help of an experienced Will, estate and trust lawyer.”
Jim Yih is the co-author of Smart Tips for Estate Planning and speaks regularly on the topic of estate planning. He is also the creator of two wonderful estate planning software programs My Estate Organizer and My Legacy Organizer.