Making a Will
You'll find more answers to your questions about wills in 'It's in Your Hands: Legal Information for Seniors and their families'.
Q - What is a will?
A - A will is a document in which you say how you want your property to be distributed when you die. A properly signed and witnessed will becomes a binding legal document on the date of your death. The person who makes the will is called "the testator".
Q - Do I have to make a will?
A - No. The law does not say that you must make a will. However, making one should give you peace of mind and make it easier for your family or friends to handle your affairs when you die. Unfortunately, it is not unusual for family members to argue over the estate of a deceased relative who dies without leaving a will.
Q - Must a lawyer write my will?
A- No. The law does not say that a lawyer must write your will. You can make up your own or buy a form from a store. However, it is wise for you to get legal advice when making a will. The lawyer will:
- make sure the will is clear about what you want to happen to your property on your death,
- make sure the will meets all the legal requirements,
- be familiar with a number of standard clauses that can be included in a will to provide for unforeseen events.
If you decide to write your own will, you should have a lawyer look it over to make sure that it meets all legal requirements.
Q - Who can make a will?
A -Any person aged 19 or older who is of sound mind can make a will. A person under 19, can make a will if he or she is or was married.
"Being of sound mind" is often called having "testamentary capacity". This means that:
- you must know that you are making a will and understand what a will is,
- you must know what property you own, and
- you must be aware of the persons (such as a spouse and children) you would normally feel you should provide for.
You must have testamentary capacity at the time the will is made. If you become mentally incompetent after you make a will, it is still a valid will.
Testamentary capacity may become an issue with persons who have a mental infirmity or who are very ill. The mental capacity of a very ill person may be affected by the illness or drugs or pain. Making your will while you are in good health may avoid the problem of having your mental capacity questioned.
You must know and approve of the contents of your will.
The will may be invalid if you were misled, whether by fraud or simply by accident, or if someone exerted undue influence on you. This is another reason for meeting with a lawyer to discuss the will so that there is evidence that the will was made by your own free choice.
Q - Does a will have to be typed?
A - No. The will must be in writing but it can be handwritten, printed, or typed.
Q- Does the will have to be signed?
A - Yes. The will must be:
- signed at the end by you. You must sign the will before two witnesses who must be present at the same time. If you are unable to sign the will you can ask someone to sign it for you in your presence. You must tell the two witnesses that the will is yours.
- signed by two witnesses in your presence and in the presence of each other. The witnesses must be at least 19 years old and must not benefit from the will or be married to someone who benefits.
You should mark the date on the will.
After the will is completed, it is wise to initial and number each page so that pages cannot be replaced or removed from the will.
You should also arrange for one of the witnesses to swear an Affidavit of Execution.
Q -What is an Affidavit of Execution?
A - An affidavit is a statement sworn before a Commissioner for Oaths or Notary Public. An Affidavit of Execution is a statement by one of the witnesses to the signing of a will. In the affidavit the witness confirms that he or she witnessed the signing of the will by the testator and in the presence of the other witness and that the testator was of sound mind and of the age of majority at the time the will was signed.
An affidavit of execution can be made any time after the signing of the will but it is best to do it immediately after the will is signed. After your death, your Executor can use the affidavit in court to show that the will was properly signed and witnessed. If there is no affidavit, the Executor will have to locate one of the witnesses and have him or her swear an affidavit when the Executor applies for a grant of probate of the will.
Q - What is a holograph will?
A - A holograph will is a handwritten will signed by the testator but not witnessed.
Before August 19, 2008 holograph wills were not valid in Nova Scotia. Then the law was changed, and a holograph will made after August 19, 2008 is now legal.
The courts have ruled that a holograph will made before August 19, 2008 is not valid.
If you have a holograph will it is best to check with a lawyer to make sure it is valid.
Q - What is a codicil?
A- A codicil is a document that changes your original will. Usually a codicil is used only to make minor changes. You must sign the codicil and have your signature witnessed in the same way as your will.
Q - What goes in my will?
A - The will contains your instructions about what you want done with your property after you die. The language should be clear and simple, so no one is confused about what you meant.
A will should have several sections. These are called "clauses":
The will should say that you revoke all previous wills and codicils.
Appointment of an Executor
The will should appoint an executor who is responsible for carrying out the instructions in the will.
Disposal of Property
This section of the will should say who gets your property and under what conditions. A will only comes into force after your death. Up until your death you are free to deal with your property as you wish. For example, if you leave your cottage to your niece in your will, it does not prevent you from selling the cottage and using the money as you wish.
The will can only dispose of property that you still own at the time of your death.
If you are leaving property to someone, you may want to provide for the possibility that he or she might die before you. For example, if you leave some of your property to your cousin, do you want his children to inherit it if he dies before you or do you want the property to go to someone else?
Generally, wills should include a residuary clause. This clause says who gets the property that remains after all gifts have been paid out or given to the beneficiaries.
If your will does not contain a residuary clause, the remaining property (called the residue) will be treated as if you had died intestate. It will be distributed according to a provincial law called the Intestate Succession Act. 'Intestate' means dying without a will.
A will may contain other clauses to suit your needs. For example, you may want to recommend a guardian for your children, create a trust, or set out the powers of the executor.
Q - Should I put my burial wishes in my will?
A - It is not a good idea. Often the will won't be found or read until after the funeral. You should tell the person who is likely to arrange the funeral what your wishes are or leave separate written instructions.
Q - Can I leave my property to whomever I want in my will?
A - In most cases, you are free to deal with your property as you wish. However, two laws, the Testator's Family Maintenance Act and the Matrimonial Property Act, place some limitations on that freedom.
Testator's Family Maintenance Act
This Act tries to make sure that your dependents are left with money and support whenever possible and if necessary. Children (including adopted children) and a widow or widower are considered dependents under the Act.
Common law spouses are not considered dependents under the Act unless they have a Registered Domestic Partnership. Then they are included from the date they registered the partnership. Divorced spouses are not considered dependents under the Act.
The judge considers all the circumstances of a case in deciding whether to give support to dependents. They include:
- whether a dependent deserves help (what is his or her character and conduct),
- whether there is any other help available to the dependent,
- the financial circumstances of the dependent,
- any services provided by the dependent to the testator,
- the testator's reasons for not providing for a dependent in the will. It helps if the reasons are in writing and signed by the testator, or if they are included as part of the will.
This is not a complete list. The judge may take other factors into account. A person who wants to apply for support under this Act should talk with a lawyer.
The Matrimonial Property Act
This Act recognizes the contribution of both spouses to a marriage. The Act says that when one spouse dies, the surviving spouse can apply for an equal division of matrimonial property. The surviving spouse must apply to the Supreme Court.
A judge decides what share of the property the surviving spouse should get.
Common law spouses are not covered by the Act unless they have a Registered Domestic Partnership. Then they are included from the date they registered the partnership.
The application for division must be made within six months after probate or administration of the estate has been granted. Anyone who wants to make an application should first talk with a lawyer.
You may decide to leave your estate to someone other than your closest relatives or you may decide to leave it to some family members but not others. If you do this, it is wise to get advice from a lawyer and to record your reasons in writing.
Q - What happens to money from my insurance policies?
A - An insurance policy can say that it is to be paid to a certain person or to your estate. If the insurance money is to be paid to your estate, the money from your policy will be distributed according to the terms of the will. If an individual is named, the money goes directly to that person. It does not become part of your estate.
Q - Can I change my will?
A- Yes. You can make changes to your will at any time up until your death provided you are mentally competent. You should look at your will now and then to make sure it is still up to date. For example, you may have sold or given away some of the property mentioned in your will. You may want to make changes in the will because of births, deaths, and marriages in the family.
There are two usual ways to change your will:
- You can write a separate document called a codicil. You must sign and have your codicil witnessed in the same way as your will. The opening words of the codicil usually refer to the will that it is amending. It will say that certain clauses of the will are revoked or amended and others are substituted. It should say that apart from these changes, you confirm the terms of the will.
- You can make a new will. It may be wise to make a new will if you wish to make major changes in your will or you have already made a number of codicils. The first clause of a new will usually says: "I revoke all wills and testamentary dispositions of any nature and kind made by me." The most recent will, properly executed, is the one which will be used following your death.
Changing your will by marking or crossing out words in the will often causes problems. It is much wiser to make a codicil or a new will.
You must be of sound mind at the time you make the changes or the new will or codicil may be challenged in court.
Q - Can I cancel my will?
A - Yes. There are five ways to cancel your will, or parts of your will. This is called revoking a will.
- Your will is revoked if you marry, unless you made the will knowing you were going to get married.
- Parts of your will may be revoked if you divorce. As of 19 August 2008, divorce revokes parts of a will that involve a gift to or provide a benefit to a former spouse or appoint him or her as executor. There are exceptions. For example, the will, a separation agreement or marriage contract may specifically say that the terms are not affected by a divorce.
- You can make a written document saying that you want to revoke the will. It must be signed and witnessed in the same way as a will. For example, in one case the bank manager had the will. The testator became ill and signed a letter to the bank manager that said: "Will you please destroy the will already made out." This letter was properly signed and witnessed, and it revoked the will.
- You can make a new will. A new will which is properly executed revokes a previous will. A codicil revokes certain clauses in a will.
- You can destroy the will or ask some other person to destroy it in your presence. If your will is accidentally destroyed (for example, by a fire in which you die) a copy of the will can be used because there was no intention to revoke.
Q - Is a will made outside Nova Scotia valid in Nova Scotia?
A - Your will may be valid if it was made outside Nova Scotia. You should have it checked by a lawyer to see that it meets the requirements of Nova Scotia law.
Q - What happens if I die without a will?
A - When you die without a will you are said to die "intestate".
- Your estate will be divided according to the rules set out in the Intestate Succession Act. Your property may be distributed in a different way than you would want.
- Common law spouses are not on the distribution list unless they have a Registered Domestic Partnership. Then they are covered from the date they registered the partnership. If there is no Registered Domestic Partnership, the surviving common spouse may have to go to court to get financial support or to make a claim on your estate. Children of the common law relationship are covered in the Act.
- There will be additional expense and delay in settling the estate. This may add to your family's pain and distress.
- Family members may disagree about how you intended to distribute your property.
- The person who will look after your estate must be appointed by a court and may not be someone you would have chosen.
- If you and your spouse die at the same time and have not chosen a guardian for your children, the person appointed as guardian might not be someone you would have chosen.
The law relating to intestacy also applies when a person dies partially intestate. This means where you do not dispose of all your property in your will. The part of the estate that your will does not deal with is distributed according to the Intestate Succession Act.
Q - Who looks after my will when I die?
A -Your executor looks after your will when you die. An executor is the person or corporation you name to carry out the terms of your will. The executor's job is to see that everything in the will is handled properly. The Executor applies to the Probate Court for a grant of probate. This gives the executor power to handle your estate in accordance with the terms of your will.
The executor will gather together all of your assets, pay your debts and taxes, and distribute your money and property according to the instructions in your will.
If you do not name someone to be an executor in your will or if you die without a will, your next of kin will usually ask the Probate Court to appoint someone to fill the executor's role. This person is called an "administrator".
The court uses the term "personal representative" for those appointed as either an executor or an administrator.
It is best to name an executor in your will because then you can be sure that your estate will be handled by someone you know well and trust. Also, you can give broader powers of administration and discretion to your executor than the Probate Court will give an administrator.
Q - Who should I choose as an executor?
A -Most people ask a family member or close friend to act as their executor. However, you need to be sure that the person you choose has the time and ability to carry out the many duties of executor and is someone who will get things done.
Looking after an estate can be difficult and time-consuming. Sometimes it can include responsibilities that last for years.
Here are some things to keep in mind:
- The best executor is a trustworthy, reliable, and competent adult.
- You should consider choosing someone who has some knowledge about business affairs.
- Choose someone who is likely to outlive you.
- Choosing someone who lives in the same province as you do may cut down on long distance phone calls and other administrative expenses.
- Your spouse, a friend, family member, or heir may be able to do a good job as executor. Many people choose their spouse or main heir as executor.
- You may wish to appoint a back-up executor in case your first choice dies, moves away, or for some reason is unable to do the job.
You can name your lawyer as executor, but most lawyers do not act as executors. They prefer to handle only the legal side B preparing documents and advertising for creditors. Before you name your lawyer check that he or she is willing to be your executor.
Q- Can I choose a trust company to act as my executor?
A - If your estate is complicated or you do not have a relative or friend who is able to act, you may want to appoint a trust company as executor. You should check that the company is willing to act as executor. If you don't, the company might refuse to act as executor upon your death.
Most trust companies have experience in estate planning. Their advice may help you plan your estate to save tax and avoid administrative problems. Also, because such companies are strictly regulated, you can be sure that your estate will be handled properly and legally.
If there is a chance that a problem will arise among your heirs, a trust company might be a good choice because it would be an impartial executor. If you appoint a trust company as your executor, the company may give you free advice on drafting your will and may store it for you.
There can be disadvantages to using a trust company:
- they usually charge the maximum fee allowable,
- they tend to be conservative investors,
- they probably will not be as familiar with your assets as a friend or family member,
- their fees are subject to certain taxes which are payable out of the estate.
Before choosing an executor, you may also want to think about the time involved in administering your estate. For example, if you want to set up a trust for the care, education, and benefit of your children, this would be a long-term commitment for an executor. In a case like this, you may want to consider a trust company rather than someone who might not be able to make such a time commitment or who may die before the funds in the trust have all been distributed.
Q - Can the person I choose as executor refuse the position?
A - Yes. A person named in your will can refuse to act (called "renouncing"). By refusing, an executor makes it known that he or she does not plan to take on the job and gives up all the rights and responsibilities of the appointment. If the person you choose is not told until after your death, and then he or she refuses, your next of kin will have to apply to the court to appoint someone else. This is why, before you make your will, you should ask the person whom you want to be your executor if he or she is willing to take on the job. If he or she refuses, you can appoint someone else.
Q - Can I appoint joint executors?
A - Yes. You can appoint more than one executor (called "co-executors") to share the responsibility. Unless you provide otherwise, the co-executors would have to agree on all decisions and both would have to sign all documents.