Coffee With An Estate Lawyer: Making It Official

Epilogue launched a series of Instagram Lives for Make a Will Month. To wrap up the month, Epilogue co-founders, Daniel and Arin, discuss what needs to happen for your estate planning documents to be official. Like more than Facebook official, we’re talking legally-binding, court-approved official.

So, after you make your Will, what exactly needs to happen for it to be considered valid and hold up in a court of law? Here are the main takeaways from the discussion.

You do not need a lawyer or notary to validate your Will

Many people are under the misguided notion that you need to have a lawyer or notary present in order to validate your Will. This isn’t the case.

Having said that, there are some specific things that need to happen in order for a Will to go from a piece of paper to a legal document.

You must sign your Will in the presence of two witnesses

One very important requirement for a Will to be considered legal is that you have to sign it in the physical presence of two witnesses. There are some rules around who can and can’t be a witness:

• They should be adults and of sound mind

• They shouldn’t be receiving a benefit under your Will

• They shouldn’t be a family member of anyone receiving a benefit under your Will

If anyone who is receiving a benefit under the Will is a witness, anything they would have received under the Will is canceled.

Although not legally required, another good practice is for you and your witnesses to initial each page in addition to signing the last page. The entire signing can be done without lawyers involved!

Holographic Wills do not need to be witnessed

In Ontario, there are two different ways to make a Will:

• Entirely hand-written (called a holographic Will)

• Typed and printed

A Holographic Will is the only type that doesn’t require a witness. But there are many problems with handwriting your Will. Unless you are an estate lawyer, you’re likely to either include too little or too much information and leave your Will vulnerable to being challenged after you pass away.

Wills that are typed (either by a lawyer or online) and printed, need to be witnessed. With Epilogue, you get detailed signing instructions with your Will to make sure you don’t miss any details or steps.

Virtual Will-signing is now allowed in many provinces

During the pandemic and amidst physical distancing recommendations, Will signing has become more challenging. So, for the first time in hundreds of years, the estates bar has made an update.

Provincial governments across Canada issued emergency orders and said that ‘in the presence of’ can also mean virtual, for as long as the emergency stay-at-home orders are in place.

That means for as long as physical distancing rules are in place, Wills could be witnessed virtually via video call to keep everyone safe. Here’s how the first iteration of the rule worked:

• Hop on a video call with your two witnesses

• Have them watch you sign your Will

• Courier the physical Will to one witness

• Hop back on a video call to watch them sign it

• Witness 1 couriers the physical to the second witness

• Hop back yet again on a video call to watch the second witness sign it

• Witness 2 sends the Will back to the testator

This is clearly a very cumbersome process so shortly after the measure was put in place, the Ontario government offered people another option. If each person had an identical physical copy of the Will, everyone could sign it in the correct place on ONE video call. The caveat to this is that all three documents must be kept together for the Will to be valid.

Electronic Wills are not yet legal in Canada

Despite the ability to virtually witness a Will, the Will itself still needs to be physically printed out onn paper and signed with ink.

In Canada, we still don’t have electronic Wills, which are digital Wills that are made and stored online and signed digitally. There are some places around the world where you can do this; however, it’s not legal in Canada yet.

They are currently working on developing this legislation in B.C. but it isn’t legal yet. Stay tuned!

An Affidavit of Execution is highly recommended

Although not legally required, signing an Affidavit of Execution is considered a best practice. An Affidavit of Execution is a document you sign with one of your witnesses that affirms they were present for the witnessing and signing of the Will.

This document must be kept with the Will and is submitted to probate court after you pass away. It helps the court prove the validity of the Will and can become very important during the probate process to make it easier and more streamlined and to prevent family disputes.

In the absence of an Affidavit of Execution, the court will try to find the witnesses to confirm they were present; however, in some cases, the witnesses are no longer alive since the Will was witnessed several years before.

B.C. is the only province that does not use an Affidavit of Execution.

Store your Will somewhere safe (but not TOO safe)

If you made your Will with a lawyer, it’s possible the lawyer would keep the original and store it for you.

If you used an online platform, like Epilogue, you need to keep it in a safe place that’s accessible to your executor. You should also let your executor and key family members know where you’re keeping so they can find it easily after you pass away.

Keep in mind, there is such a thing as TOO safe. Don’t keep your original Will somewhere like a safety deposit box because nobody will be able to access it if you’re not around.

There isn’t one right answer in terms of where to store your Will. Generally speaking, make sure it lives somewhere that’s safe from water or fire damage.

What happens if you need to update your Will?

When it comes time to make updates to your Will, you can’t just go back and edit your old one. The best thing to do is to create a brand new Will. This means you must print it out and go through the validation process again.

If you made your Will with a lawyer, they might make something called a codicil with the updated information. A codicil gets attached to your original Will.

If you made your Will using an online service, like Epilogue, you can log in to your dashboard and make updates to your Will any time. Any changes would require you to print out the new Will and go through the signing procedure again in order to make sure it’s legal.

Watch the full discussion here: