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Wills

A will is a document that sets out a person’s wishes and directions with respect to the disposal of their property, or custody after their death.

Requirements of Wills

 

  • In Writing

A will has to be in writing, typed or hand written.  A tape-recorded or videotaped will is not valid.

  • Signed by the Testator

A will has to be signed by the person making the will. If a person is unable to sign with his own hand he can direct another to do so in his or her presence, in this case testator must acknowledge in the presence of two witnesses that the other person has signed for him or her. Important to note that if there is a gift under the will to the person that signed on behalf of the testator then that gift could be void.

  • Witnessed

A will must be witnessed by two persons, neither of whom can be a beneficiary named in the will or a spouse of such a beneficiary. An exception is that a will does not have to witnessed if made entirely in the handwriting of the testator and signed by him at the end. Such wills are called holograph wills.

  • Mental Capacity and Knowledge

A testator must have mental capacity and must know and approve the contents of a will, otherwise the will can be set aside by the court.  A person can be said to lack the mental capacity if he or she at the time of instructions or at the time signing the will lack:

  1. An understanding of what it means to make a will;
  2. An understanding of the extent of his or her own property;
  3. An understanding of the relationships he has with those persons who might be expected to receive a portion of his estate; and
  4. An understanding of the claims of the persons whom he is leaving out of his will.
  • Mirror Will

A mirror will is essentially two wills, one for each spouse. They are both identical save for the names which flipped for each spouse.  Such a will is usually used to leave everything to one spouse and then after to their issues (child or children) depending on which spouse dies first.

  • Multiple Wills, Split Wills or Dual Wills

Normally a will revokes and previous wills.  However, sometimes it is prudent to have two wills one dealing with real estate property and the other dealing with personal property such are shares of a company.Such wills are usually used to save estate administration tax and probate payments.

  • International Wills

It is possible to make a will in Ontario that deals with property elsewhere outside of Canada.  However, if that other country does not recognize this will, you might have to make a secondary will in that country dealing with that property.

  • Amending a Will

There are two ways to amend a will: by making the changes on the face of the will itself or by way a formal amending document called a codicil.

  • Living Wills

A living will is usually a directive to a treating doctor or personal representative of the client directing the doctor not to keep the client alive by artificial means. A living will is not really a will as such. However, a living will is usually a good idea to have if you are concerned with these kind of matters as putting such directive in a normal will is not a good idea for a normal will is usually not consulted until days after the death.