What is a will and why is it important to have one?

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When I think of wills, my mind conjures up an image of an old, dying millionaire who has to distribute his riches equitably 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?

According to A legal information guide for seniors (Manitoba Government), a will is “a written document that controls the disposal of a person’s property after death”. It describes in detail how you want your assets to be divided among family members or friends.

But did you know that a will can contain more than the distribution of property? It can also assign guardianship of your minor children and name an Executor, a person you trust who will make sure that your wishes will be carried out exactly. You can even forgive debts owed to you in your will.

There are two types of wills:

  1. Formal will – a document prepared together with a lawyer and signed in the presence of a witness or several witnesses.
  2. Holograph will – a handwritten will that drafted without witnesses. Another type of this are “pre-printed will forms” which may be bought from drug stores, stationery shops or online. While holograph wills may constitute a valid will, it is very easy to make mistakes that can make them invalid. Having to prove them valid can make it difficult for your loved ones after your death.

Important to note:

  1. A will must be in writing. Tape recordings or videos are both invalid and do not meet the requirements of The Wills Act.
  2. The person making the will (testator) must be at least 18 years old.
  3. The testator must be have the mental capacity to understand what he or she is signing.
  4. 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?

  1. Even if you don’t have a lot of money, properties or valuables, you still have assets that you will leave behind when you die. Having a will takes the stress off of your loved ones who would have had to decide for you about matters regarding your assets during an extremely emotional time.
  2. Having a will can give you peace of mind. Arranging your affairs in advance gives you the assurance that your family will be financially secure and taken care of whatever happens to you. 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 custody of them). This is especially important if your closest family and friends live far away or are in another country.
  3. Many of us assume that the things we own will automatically pass on to the right people when we die. When you don’t have a will, this is not assured. Having a will can prevent bitterness and division among family members when they deal with dividing your property, especially those with sentimental value.
  4. If you do have considerable assets, having a will is an important tool in estate planning. It will allow you to maximize the benefits of your estate. For example, with the proper guidance of your lawyer or estate planner, you can defer capital gains and tax obligations.
  5. When you do not have a will, the court appoints an administrator who will distribute your property according to the provisions of law, with no consideration to your personal wishes. A court appointed administrator has less power to deal with your estate than an executor which could affect his/her ability to manage your property in a way that will most benefit the people who are to inherit it.

Should you make your own will?

While you can always choose to do it yourself, you should think twice about making a holograph will. Investing in the services of a good lawyer may 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 his/her 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. And for holograph wills, especially pre-printed will forms, having them declared valid can be difficult as one small mistake can invalidate the will.

If you are interested in consulting a lawyer, you can contact the Law Phone-In and Lawyer Referral Program in Manitoba. You are given half an hour to consult or interview the referred lawyer for free. After which you may decide to hire the lawyer and agree on a fee. It would be a good idea to be prepared for this consultation to maximize your consultation time. 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 having a draft of your beneficiaries, your preferred executor and other details, will make your legal consultation fruitful and worry-free.

Sources: A legal information guide for seniors, Manitoba Government (downloadable guide); Deceased Estate Handbook, Public Guardian and Trustee of Manitoba; The Law Dictionary, How to arrange for guardianship of your children after your death.

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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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