How to write a will

Let's talk about wills

Writing a will is 1 of those things you know is important but can be challenging to put together. In fact, according to Angus Reid Institute, half of adult Canadians don’t have a will. 

There are several challenges when it comes to making a will – cost, understanding what’s required, and most importantly, the fact it forces us to think about something that can be uncomfortable, our own death.

Fortunately, there are resources to help you write a will and to decide what approach you will take. There is no legal obligation to write a will, but having one is important because it helps ensure your wishes are carried out after you die. This can include who receives your assets, such as cash savings, stocks or real estate. It can also include instructions about who’ll care for your children or other dependents, how you want to be remembered in ceremonies, such as a funeral, and even how your remains are disposed of. 

These are just some of the steps to take before writing a will.

Determine who’ll take on each role

There are several important people who may play a role in a will. Let’s look at what each does and who you might consider filling each role.

• Custodian(s): If you have minor aged children, a custodian(s) is responsible for the physical custody if you and your spouse die.
• Guardian(s): If you have minor aged children, a guardian manages their assets if you and your spouse die. It can be 1 person or a couple whom you trust. Custodians and guardians are often the same people.
• Executor: This person executes your will’s instructions, distributes funds to beneficiaries, and can act on behalf of your business and interests. Often, trusted family members or friends are named as executors, but corporate or professional executors are also an option. Depending on the province, an executor can also be referred to by other names, such as estate trustee (in Ontario) and liquidator (in Quebec).
• Spouse: Your married or common-law partner with whomwith whom you’ll work to make decisions on your shared assets or dependants. 
• Attorney for property: As part of a power of attorney, this person makes decisions about your property and finances if you’re not medically able to do so. Choose a trustworthy spouse, relative or close friend.
• Attorney for personal care: As part of a power of attorney for personal care, this person is your voice for healthcare decisions if you can’t communicate. Choose a spouse, family member, or close friend with good judgment.
• Substitutes: You may find your first choice for some roles will refuse the task or be unable to fulfill the role. That’s why you should have substitutes to fill those roles.

While talking to those who’ll play a role in your will may be difficult, it’s important they understand what’s expected of them and that they’re willing to undertake the task.   

Gather a list of assets

Make a list of valuables and items you’d like to include in your will as specific gifts or bequests.

These are identifiable items of property or amounts of money given to individuals when you die such as cash, jewelry, art, clothing, family heirlooms or mementos.

You only need to include specific items in your will if you’re giving something to a specific person. MostAll property not listed as a specific gift will be included in your residual estate and distributed according to your instructions, unless there are other instructions elsewhere such as beneficiary designations.

In terms of the financials, you don’t need to worry about calculating your current net worth or the value of your RRSPs – your will covers your umbrella estate (everything you own, unless it’s owned jointly, or already has a named beneficiary). 

Discuss your will with loved ones

Before creating your will, talk with your spouse possibly your minor children about custodians and guardians. You’ll also want to communicate your end-of-life wishes.

You may also wish to talk with family members about any special gifts or bequests.

Determine what type of will you’ll use

Attested (witnessed) will

In most of Canada, this is the most common type of will. It’s a formal, usually typed document, where the testator (the person who’s will it is) must sign the will in front of 2 witnesses, who then must sign the will in front of each other.

A witness should not be a beneficiary under the will.  If a beneficiary is a witness, they will be disentitled to whatever was left to them under the will.  Outside Quebec, if the spouse of a witness is a beneficiary, that spouse beneficiary will also be disentitled in most cases.

Holograph will

This is an entirely handwritten will, written and signed by the testator. You don’t need witnesses for this kind of will.

Holograph wills can be convenient, especially in emergency or end-of-life situations.

Notarial will (Quebec)

A notarial will is drawn up by a notary and made in the presence of a witness (often provided by the notary). A second witness is required in some cases (for example, when the testator is blind).

The will must indicate the date and place where it was made. 

Once the will has been prepared, it’s read to you by the notary, so you’re sure it reflects your wishes. If you wish, it may be read in the presence of the witness.

Once the will has been read, it must be signed by you, the notary and the witness, in each other’s presence.

Living will

This really isn’t a will as it operates while you’re still alive. A living will provides specific advanced instructions on the type of medical care you wish to receive (or not receive) if you’re unable to convey your wishes. Anyone who makes a medical care/treatment decision for you must consider the living will before doing so.

People sometimes confuse a living will and a power of attorney (protection mandate in Quebec). Where a living will say what your medical care wishes are, a power of attorney often just says who will make decisions, either for property or personal care.

Will kits

Depending on the complexity of your personal situation and your budget, you may choose to create your will using a will kit, available from many sources, or by using an online will creation resource.

Getting your will written

If your estate and/or your wishes are complicated, then it might be worth seeking legal assistance. Are you a business owner? Do you have debt that will need to be paid off after you die? Do you have assets such as property outside Canada? Do you have children from more than one partner? If you answered yes, then your will won’t necessarily be straightforward. 

Seeking professional legal assistance with a will helps ensure all your documents are prepared and witnessed properly. There are also ways to reduce some of the costs you’ll get in legal fees. For example, if you feel your wishes and your estate are relatively simple, you could hire a lawyer to review a will you create on your own, as opposed to having the lawyer create one for you.  

You can write your own will, but make sure it is all in your own handwriting. Again, this may be a cost-effective solution in the short-term, but you run the risk of not including all the relevant information or leaving out necessary details.

Regardless of how your will is written, it should be updated from time to time and particularly when you experience major life events such as marriage or divorce, the birth of children, or when you experience changes in your financial situation or health.