This Blog was written by Suzanna Walter, Estate and Trust Consultant with Scotia Wealth Management
It is not surprising that in a pandemic many people are very concerned about their estate plan. This blog will focus on making a valid Will.
In Canada each province and territory has its own legislation which sets out the legal requirements for a valid Will. Some provinces, such as British Columbia, have a “substantial compliance” standard, whereby a court can validate a Will that has not be properly executed. Ontario on the other hand has a “strict compliance” standard and Wills must comply with the Succession Law Reform Act .
In Ontario a Will must be in writing (no video Wills) and can either be a Witnessed Will or a Holograph Will, which does not need to be witnessed. Each type of Will creates its own challenges in a pandemic.
The key requirements for a valid Witnessed Will (with some specific exceptions for example members of Canadian Forces on active service) are:
- The Will must at its end be signed by the Will-maker or by some other person in his or her presence and by his or her direction.
- The Will-maker signs or acknowledges his/her signature in the presence of two Witnesses at the same time.
- Both Witnesses must sign the Will in the presence of the Will-maker and each other.
The requirement of “in the presence” has been regarded as meaning in the same room and being able to see each other signing the Will. The following cannot be witnesses:
- A beneficiary
- The married spouse of a Beneficiary or
- A person under the age of 18
Many lawyers are not meeting with clients or are very concerned with meeting a vulnerable client. One solution is for the lawyer to send the drafted Will to a client with detailed instructions on proper signing and witnessing. In this situation, the lawyer would be wise to limit their retainer so that the lawyer is not responsible for the due execution of the Will. However, with physical distancing and the restrictions on who should be a witness, it is not always realistic to expect a client to find two witnesses.
The key requirements for a valid Holograph Will are that it must be wholly in the handwriting of the Will-maker and signed at the end. There are some recommended key minimum provisions which should be in the handwritten Holograph Will:
- Clearly state that it is a Will and date it.
- Revoke prior Will
- Appoint an Executor
- Set out simple provisions distributing estate
- Give executor power to sell
For more complicated estates, holograph Wills can be problematic. What is needed is a change to the legislation. Changes could include an amendment to allow a court to validate a Will in substantial compliance, or better yet as a court application can be expensive process, new provisions which would allow for a more flexible, modern signing procedure. A legislative change would be a welcome relief to estate planners and clients wanting to make changes to their estate plan.