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When I think of wills, my mind brings up an image of an old, dying millionaire who has to distribute his riches among his heirs. Since I’m neither old, nor a millionaire, drafting a will is the furthest from my mind. But did you know that having a will is an important part of planning for your family’s future?
What is a will?
A will is “a written document that controls the disposal of a person’s property after death” (A legal information guide for seniors). It describes in detail how a person wants their assets to be divided among family members or friends.
A will can contain more than the distribution of property. It can also be used to assign guardianship of minor children, and name an Executor. An executor is a trusted person who will make sure that the deceased’s wishes will be carried out exactly as stated. A will can also say that the deceased forgives debts owed to them by certain individuals.
There are two types of wills:
- Formal will – This is a document prepared together with a lawyer and signed in the presence of a witness or several witnesses.
- Holograph will – This is a handwritten document drafted without witnesses. Examples of holograph wills are pre-printed forms from drug stores or stationery shops, or those online. While holograph wills can be valid, it is very easy to make mistakes that can make them invalid.
Important to note:
- A will must be in writing. Tape recordings or videos are both invalid and do not meet the requirements of The Wills Act.
- The person making the will (testator) must be at least 18 years old.
- The testator must have the mental capacity to understand what they are signing.
- A witness to a will and the spouse or common-law partner of that witness cannot receive any benefit from that will.
Why is having a will important?
- Even if a person doesn’t have a lot of money, properties or valuables, they would still have assets that they will leave after they die. Having a will takes the stress off of loved ones who would have to decide about matters regarding the deceased’s assets during an extremely emotional time.
- Having one can provide peace of mind. Arranging affairs in advance gives the assurance that family left behind by the deceased will be financially secure and taken care of whatever happens to them. For example, in the extreme case that both parents pass away, a will can appoint a guardian and/or trustee for the orphaned children (someone who will take care and have custody of them). This is especially important if closest family and friends live far away or are in another country.
- Many of us assume that the things we own will automatically pass on to the right people when we die. This is not assured when there is no will. Having one can prevent bitterness and division among family members when they deal with dividing property, especially when it involves items that have sentimental value.
- For people who have considerable assets, having a will is an important tool for estate planning. It will allow their family to maximize the benefits of their estate. For example, with the proper guidance of a lawyer or estate planner, they can defer capital gains and tax obligations.
- When a deceased person does not have a will, the court appoints an administrator who will distribute their property according to the provisions of law, with no consideration to the deceased’s personal wishes. A court appointed administrator has less power to deal with an estate than an executor. This could affect their ability to manage the deceased’s property in a way that will most benefit the people who are to inherit it.
Should you make your own will?
You can, but you should think twice about making a holograph will. Investing in the services of a good lawyer can mean more savings (and less stress) in the long run. “Probating” a holograph will require presentation of affidavits to attest to the testator’s handwriting and their mental ability to make a will at the time it was written. Probating is the procedure used to determine the validity of the will. It is done by the Probate Court. Having holograph wills (especially pre-printed forms) declared valid can be difficult because one small mistake can invalidate it.
If you are interested in consulting a lawyer, contact the Law Phone-In and Lawyer Referral Program in Manitoba. You will be given half an hour to consult or interview the lawyer for free. You may decide to hire the lawyer and agree on a fee after the interview. It would be a good idea to be prepared for this consultation to maximize your consultation time. Read: Family Law in Manitoba to know more about the topic. Prepare your questions and concerns, and know exactly what you want done. Making a list of everything your own (property, valuables), bank accounts, insurance policies, and pensions as well as writing down your beneficiaries, preferred executor, and other details, will make your legal consultation efficient and productive.
Article updated July, 2024.
Sources: A legal information guide for seniors, Manitoba Government; Deceased Estate Handbook, Public Guardian and Trustee of Manitoba; The Law Dictionary, How to arrange for guardianship of your children after your death.
Community Resources
Read Do you need legal help? for more resources.
For more on guardianship of minors: Family Law in Manitoba (Chapter 15 Death in the Family); The Family Law Reform Act (Part 3 Child Custody, Access and Guardianship), The Public Guardian and Trustee of Manitoba (Children’s Trust Services)
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