OAKNet: Abuse of Older Adults

Wills

What is a will?

Why should I make a will?

How do I make a will?

Some important rules about wills

Rules relating to intestacy

Inadequate provision made for dependants

What is a will?

A will is a legal document that sets out your wishes concerning the distribution of your property and possessions when you die. The maker of a will is called a testator.

If you die without leaving a will, you are said to have died intestate.

The property and possessions that you leave when you die are described as your estate.

When you make a will you can appoint one or more persons to look after your estate. This person is called an executor.

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Why should I make a will?

There are many good reasons for making a will. These include:

If you die without a will your property and possessions are distributed in accordance with the laws on intestacy rather than in accordance with your wishes.

You can formally decide who receives specific property and possessions rather than have your family fight about it after your death.

If you do not make a will, any property that you own cannot be distributed until an administrator has been appointed.

If you are responsible for under-age children or children who are incapacitated, you can provide for their future care by appointing guardians in your will.

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How do I make a will?

Although it is possible to purchase stationery forms and make out your own will, it may be worthwhile to consult a lawyer. There are strict rules about making a will that are very important in order to ensure that the will is valid. In addition, a lawyer may be able to design a will that takes into account possibilities that a standard form cannot. Many lawyers will charge a set fee for making a fairly simple will.

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Some important rules about wills

A will must be in writing to be valid.

Generally a will must be signed at the end by the testator in the presence of two witnesses. The two witnesses must each sign in the presence of the testator.

It is possible to make a valid will without witnesses if the will is made entirely in your own handwriting. This is called a holograph will. It is generally not advisable to rely upon making a holograph will except in extreme circumstances, because of the likelihood that other requirements to make the will valid are not present.

A person must be over 18 years of age to make a valid will unless he or she has been married or is a certain member of the Canadian Forces or is a mariner or seaman.

A person who is receiving a gift under a will, and his or her spouse, cannot witness a will.

An executor can witness the will unless he or she is a spouse of a beneficiary.

Marriage revokes a will unless the will specifically says that it is made in contemplation of the marriage.

Divorce does not invalidate a will.

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Rules relating to intestacy

If someone dies without making a will, his or her property is distributed according to the rules set out in the Intestate Succession Act.

The rules provide that if a person dies without a will ("intestate"), with a surviving spouse and no children, his or her spouse inherits the estate. The rules then set out an exhaustive list of alternative scenarios that deal with surviving spouse and children and a surviving adult interdependent partner.

If there is no spouse, no children, and no adult interdependent partner, the estate goes in order to surviving parents, siblings, nephews and nieces, and thereafter to next of kin.

Where a person dies intestate, someone must apply to the Surrogate Court for a grant of administration of the estate. Those who can apply are set out in the Surrogate Court Rules and start with the deceased's spouse.

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Inadequate provision made for dependants

If a will does not provide adequately for the maintenance and support of the maker of the will's dependants, any of the dependants can apply to court for an order that he or she be given more of the estate.

Dependants include a spouse of the deceased, a child of the deceased who was under eighteen at the time the maker of the will died, or a child over eighteen who cannot earn a living due to physical or mental disability.

The same kind of application can be made by dependants where there is no will and the intestacy rules do not provide for adequate maintenance and support for the dependants.

In both cases, a judge has the power to order that provision be made from the estate for the maintenance and support of the dependants despite the contents of the will or the rules relating to intestacy.

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