Online Wills

What is a Will?

A Will is a legal document that describes what you want to happen to your assets (and dependents) in the event of your death. The vast majority of Wills are simple documents that detail in plain language three major points:

1. Your assets and liabilities, and how and to whom you want them distributed.
2. If you have children under the age of 18 or other dependents you are legally responsible for, you may name a preferred guardian and any wishes you have for their care.
3. The name and details of the person(s) you wish to be responsible for carrying out the instructions in your Will (known as the Executor).

Obviously some Wills are more complex than others; if you have a lot of assets, a big family, or are planning for tax efficiency, then your Will may need more information. But for the majority of Canadians, Wills are brief and easy to draft.

Making Sure Your Will is Legal

To be in any way effective, a Will must be legal. To meet the basic threshold for legality in Canada, you must:

• Be age of majority in your province (unless you are married or a member of the Canadian Armed Forces).

• Have your Will written (or signed) by you while of sound mind (i.e. functionally able to make legal decisions for yourself).

• If handwritten by you, you Will must bear your signature; if typed, your Will must be signed in the presence of two objective witnesses who are not named in the Will, and who must also sign it. Signatures must be ink signatures, not typed or printed or electronic.

You’ll notice that there is no legal requirement for a Will to be written or reviewed by a lawyer. This is a common misconception and one of the reasons many people assume writing their Will will be expensive. A lawyer can certainly help in complex situations, but is by no means a requirement.

How to Write a Will

As Wills are such important documents, there are multiple ways to prepare them:

DIY

DIY Wills come in two forms: literal DIY kits, which you can buy at stores like Staples, and holographic Wills. DIY kits are fill-in-the-blank style documents based on a simple template; they don’t allow for any flexibility or customization, and cannot be updated. Holographic Wills are the handwritten kind - where you write down on a piece of paper what you want to happen to your estate, and sign it. These aren’t legal in every province, and often lead to confusion and inconsistencies.

Lawyers

Lastly, for those with complex needs, an estate lawyer (or notary in B.C. and Quebec) is really the only way to go. This means working with a specialist, one-on-one, to craft a personalized document that addresses every aspect of your wishes, regardless of their intricacy. People with property outside of Canada, a foreign Executor, residence in multiple jurisdictions, business ownership, entangled property rights, blended families, a desire to exclude specific people from their Will, or who want to include clauses are all best served by an estate lawyer. This is the most expensive route, as it is the only one where you can seek one-on-one legal advice.

Online

Online Will services are on the rise, and these platforms offer cost-effective solutions to anyone with a moderately simple estate looking for a more formal way to set out their wishes - which is about 90% of the country. Instead of working from generic templates, as with DIY wills, the service asks users a series of questions, then crafts a document based on language from estate lawyers. So each document is completely unique.

Not every online Will company is active in every province, so you need to find one that can work with you, and unfortunately online Wills are not legally recognized in Quebec. So this service best serves Canadians who have specific wishes, dependents to care for, and simple estates, living outside of Quebec. Online Will services are more expensive than DIY kits or holographic Wills, but much cheaper and more convenient than working with an estate lawyer.

Why Do You Need a Will?

You may wonder why you need a Will at all; in the event of your death, you may assume that all of your assets simply go to your next of kin. However, this can be more complicated than you assume, and provincial laws vary across the country as to how the estate of deceased persons without a Will are handled. This situation is known as dying “intestate”, and it can be costly and time consuming.

Most provinces dictate that your property will be divided up according to a hierarchy of family relationships, but even if this is what you want to happen, relying on provincial law to carry this out is actually more expensive and will take much longer to execute than if you wrote a Will stating the same thing. And dying intestate leaves no allowances for if you wish to include non-family members in your plans. All you’re doing by delaying writing your Will is placing the burden of organizing your estate on your family and beneficiaries.

Frequently Asked Questions About Wills

Can I update my Will once it’s written?

Yes, most types of Will allow you to update it and make changes as often as you like. Online platforms build this functionality into their services, and lawyers will of course allow you to use their assistance as much as you need (for a price). The only Wills that offer no room for modification are DIY Wills, which need to be rewritten from scratch every time. After you update your Will, you must sign it to make it legal, and you must destroy the old Will (which has become invalid).

Where do I store my Will?

You should always have a physical, printed copy of your Will stored in a safe place - and let your Executor know where this is. Digital copies are not valid, so even if you use an online service you’ll need to print it out. Lawyers will often keep copies of Wills they have drafted for their records, and you can use the Canada Will Registry to register your Will. This way, if there is any doubt in the future, your Executor or family will be able to search and find out where you stored your Will.

Are online Wills legal?

As long as the conditions for legality set out above (being age of majority, of sound mind and physically signing your Will) are followed, your Will will be legal, regardless of whether it was created using an online tool. The only place this is not true is in Quebec, which does not recognize online Wills.

Why should I use an online Will service?

Online will services are more flexible and customizable than DIY services, but much cheaper and more convenient than lawyers. They sit in the middle ground, catering to people who have clear plans but who do not wish to risk leaving their estate in the hands of the provincial government. It’s also of benefit that you can complete your online Will completely from home, in your own time.

What’s a Trust?

A Trust is a form of relationship, where assets or property from your estate are held on behalf of a beneficiary (usually a child), and managed by a Trustee(s) - who you name. Trusts are useful if you have children under the age of 18 who you wish to inherit your estate, but who are not legally able to do so yet. A Trustee will be responsible for caring for the assets/property until the beneficiary comes of age. There are many different kinds of Trust for many different circumstances, so if this is of interest to you, do your research before including one in your Will.

What does Power of Attorney mean?

Power of Attorney (POA) is a legal designation meaning that someone has power to act on your behalf. POA is created via a legal document, and the person acting for you can be a family member or an objective third party (such as a lawyer or social worker). There are two types of POA: for Personal Care, and for Property. Personal care POAs may make healthcare, housing and other personal decisions for you, and property POAs may make financial decisions for you. Many people choose to include a POA document with their Will in the event that they are incapcitated by an accident or illness and wish to name the person they want making decisions for them while they are unable.

What’s a Living Will?

A Living Will is a legal document that states your wishes for end of life care, in the event that you will be unable to communicate for yourself. Living Wills usually include what forms of medical intervention you consider acceptable and unacceptable, and in what conditions you would want to be removed from life-prolonging equipment. This is not the same as Power of Attorney, as it does not designate a separate person to make decisions for you - instead it is a document that clearly states your wishes in advance.