Introduction to Preparing Your Will

What is a Will?

A Will is a legal document that leaves instructions about what you want done with everything you own at your death. everything you own at your death is called the estate.

A Will gives you some control over what will happen to what you own when you die. By having a Will, you can make sure that the things you own go to the people you want to have them. A Will can be useful for people who outlive you. They can then feel sure that they are carrying out your wishes.

When should I make a will?

You can make a Will at any time. You should make a Will if you marry or if you start a family. Even if you don’t marry or have children, or don’t have many assets, it’s still a good idea to make a Will so that you can leave your belongings to the special people in your life.

Also, you should make a Will when you are in good health. To make a Will, you need to be mentally capable. Your mental capability can be affected by illness, accidents or drug treatment.

Do I have to make a will?

The law does not say that you have to make a Will. However, by making one you can make sure that your wishes about inheritance are respected.

If you die without a Will, there is no legal way of knowing what your wishes are. The Supreme Court then has to appoint someone to deal with your estate.

Example: Bill’s mother died and now he’s having problems. He can’t remember everything she told him about what she wanted done with the things she owned. He wishes she’d written a Will.

What if I die without a Will?

If you die without a Will, someone, usually a spouse or child, needs to file documents in the Supreme Court Registry that ask the court to appoint him or her to administer the estate. If there is no Will, the law sets out who will inherit. The estate goes to the government only if no relatives can be found.

If there is no one who can administer the estate, then the Public Guardian and Trustee takes responsibility.

How is a Will different from power of attorney, or representation agreement?

A Will takes effect only after you die. A power of attorney and a representation agreement are two types of authority you can give someone to act on your behalf for financial matters or health care decisions when you are still alive and cease to have effect when you die.

How is a Will different from a living Will?

Currently, a living Will has no legal effect except in cases of emergency medical treatment that goes against a person’s religious beliefs. A living Will is only an expression of your wishes if you become seriously ill or injured, and are unable to make healthcare decisions. You must make a representation agreement to allow someone to make healthcare decisions for you.

What are the requirements for making a Will?

• As of March 31, 2014, you only need to be 16 or over to make a legal Will.
• You need to be mentally capable of managing your own affairs.
• You need to agree with the contents of the Will at the time you make it. If someone misleads you or puts pressure on you, the Will is not legal.

You can make a Will on your own or have someone such as a lawyer or a notary help you. Your instructions in the Will should be clear and specific.

What does a Will look like?

The law sets out some rules that must be followed:

• The Will must be in writing, typed or handwritten.
• You must sign the Will at the end, in front of two witnesses, and you must tell the witnesses that the Will is yours. If you are unable to sign the Will because of illness or disability, you can ask someone to sign it for you in front of you, and in front of the two witnesses.
• The two witnesses must sign the Will in front of you and in front of each other.
• You and the witnesses should initial each page of the Will in front of each other.
• The Will must have the date included on it.

How detailed do I have to get in my Will?

You need to be clear about exactly who the beneficiaries are. You should not say, for example, that you want to leave everything to “hungry children in Africa.”

You don’t have to write down everything. You only need to be specific about who should get what if there is something of great value and you want to make certain it goes to a particular person.

Example: You might want to say who should get your great-great grandfather’s gold watch. You may not want to say exactly what should happen to your alarm clock.

What doesn’t go into the Will?

Burial service requests are not usually in a Will. You would want to provide your executor, family or friends with this information.

If you own assets in joint tenancy or joint bank accounts, they do not form part of the estate. These assets go directly to the spouse on your death.

Usually RRSPs and RRIFs don’t form part of the estate, because in the RRSP or RRIF you name a beneficiary. When you die, the bank or trust company transfers the RRSP or RRIF, or pays it out to the beneficiary you named when you signed the documents creating the RRSP.

If you have life insurance that names a beneficiary in the policy, the same thing happens. As of March 31, 2014, you can change the beneficiaries to your RRSP, RRIF or insurance policy in your Will and the bank or insurance company must follow that beneficiary designation if they are provided with a copy of the Will before they are asked to make a payment in accordance with their documentation.

Who can be a witness to my Will?

Your two witnesses must be at least 19 years old and must be mentally capable. Before March 14, 2014 a gift to a beneficiary, would be void if the beneficiary, or their spouse, witnessed the Will. Although that gift would be void the Will would still be valid. After March 14, 2014, A witness, or spouse, may witness a Will and receive a gift under that Will, as long as it is made clear in writing in the Will that the Will maker intended to make the gift to this individual who was also a witness or the spouse of witness.

The witnesses do not need to read the Will. All they have to do is watch you sign your name to the Will, and sign the Will themselves in front of you.

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by People's Law School, 2014.

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