Holograph wills
One type of will is a handwritten will, also known as a holographic will.
This type of will must be written completely in your own hand (as opposed to typing and printing-off a document or a part of the document) and must have your signature and indicate the date you signed it.
A holograph will may be convenient to make and can be legally binding. However, if not done properly, your will may not be legally recognized as your valid last will and testament.
It may also result in complications and added costs for your estate, for other reasons such as a lack of clarity in the will about your intention to distribute your property upon your death, or challenges by disgruntled family or beneficiaries about your mental capacity or someone else having undue influence over your wishes, when you created the will.
In addition, the law in certain provinces such as British Columbia and Prince Edward Island doesn’t recognize holographic wills.
Attested (witnessed) wills
An attested will isn’t written by hand but is typed or printed. It requires, amongst other things, witnesses to your signature who aren’t beneficiaries under your will. The technical requirements about witnesses and other aspect of a valid will may vary depending on where you live or the applicable provincial law.
An attested will is often drafted by a lawyer with the expertise to guide you and ensure your will meets all the requirements to make it legally binding and clearly outlines your wishes upon death.
Notarial wills (Quebec only)
While holograph and attested wills are also types of wills available in Quebec, residents of Quebec may choose a notarial will. This type of will is drawn up by a notary, indicates the date and time it was created, and is signed by you, a witness (or two in certain special circumstances), and the notary in each other’s presence.
The notary will create a notarial will that’s in line with your wishes, and check certain things to ensure the validity of your will such as your identity, capacity and free will in completing the process. The notary also registers the notarial will in the Register of Testamentary Dispositions of the Chambre des notaires du Québec.
A notarial will takes effect immediately after you die and without the need for confirmation of the validity of your will by a court (called “probate”), which can save your estate time and money.
Wills for couples
Although not distinct types of will per se, if you’re married you may benefit from exploring the option of coordinating your wills (and more generally, your estate plans) together with your spouse.
Mirror wills
Mirror wills are a way of coordinating yours and your spouse’s individual wills so that they contain reciprocal or corresponding terms that are “mirror” images of each other – for example, you each leave everything to your spouse (or your children if your spouse dies before you or with you) when you pass away.
Mirror wills carry the risk that spouses are not legally bound to keep their respective wishes reciprocal. Either spouse may change their will at any time and without the knowledge of the other spouse (including following the death of one of the spouses), so that the wishes in their will no longer reflect their spouse’s. This could result in the disentitlement of beneficiaries which the spouses intended to benefit in the first place, through the creation of mirror wills.
Mutual wills
Mutual wills are the same as mirror wills but involve the spouses entering a contract agreeing not to change their respective (reciprocal) wills unless they have the approval of the other spouse to do so. In this way, the spouses are assured that the other cannot change their will following the death of the first spouse and that the entitlement of beneficiaries in their reciprocal wills is preserved.
Holographic or attested wills can be used to create mirror or mutual wills between you and your spouse. However, given the technical aspects involved in implementing this type of estate plan coordination, including the importance of using appropriate language in your mirror or mutual wills to achieve the desired result, it is best to obtain competent advice from legal professionals.
How to create a will
Although it’s not a legal requirement, many Canadians work with a lawyer (or a notary in Quebec) to draft up a will.
Professional legal advice can be especially helpful in drafting your will if you have a large or complicated estate, are divorced or have a blended family, or want to include custom clauses that reflect your specific circumstance. Professional expertise can help ensure your will is legally binding and may also be able to help lower the tax burden on your state.