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.

A will can contain more than the distribution of property. It can also be used to assign guardianship of your minor children and name an Executor. An executor is a person you trust who will make sure that your wishes will be carried out exactly after you’re gone. A will can also say that you forgive debts owed to you.

There are two types of wills:

  1. Formal will – This is a document prepared together with a lawyer and signed in the presence of a witness or several witnesses.
  2. Holograph will – This is a handwritten document drafted without witnesses. An example of a holograph will are pre-printed will forms from drug stores or stationery shops or copied online. While holograph wills can be valid, it is very easy to make mistakes that can make them invalid. Having to prove its validity could be 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 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 to decide for you about matters regarding your assets during an extremely emotional time.
  2. Having a one 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 have 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. This is not assured when you don’t have a will. Having one can prevent bitterness and division among family members when they deal with dividing your property, especially items that have sentimental value.
  4. If you do have considerable assets, having a will is an important tool in estate planning. It will allow you and your family 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. This could affect their 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?

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 and 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, you can contact the Law Phone-In and Lawyer Referral Program in Manitoba. You are 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 having a draft of your beneficiaries, preferred executor, and other details will make your legal consultation efficient and productive.
 
Article updated January 19, 2021.
 
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.

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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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