How Old Do I Need To Be To Make A Will?
A Will, also known as a “Last Will and Testament,” is a legal document that specifies your final wishes for the distribution of your assets after you die.
A Will determines who will receive your assets, take care of your children or pets if you have any (your guardian), and who will manage your estate when you’re gone (your executor).
A Will should not be confused with a Power of Attorney. A Power of Attorney is a legal document that gives another person the right to act on your behalf if you’re incapacitated by illness or disability.
In this article, we’ll cover:
- The legal age to write a Will in Canada
- Whether or not you need a Will based on your circumstances
- When you can write a Will if you’re a minor
- The requirements of a legal Will
- What happens when you die without a Will
What is the legal age to write a Will in Canada?
Depending on the province, you either need to be 16, 18, or 19 to write a Will. In Ontario, you can write a Will if you’re over the age of 18. In British Columbia, you only have to be 16 years of age to legally make a Will.
Of course, most young people don’t think about writing a Will until they’re older––or they forget to make a Will altogether. According to a 2018 Angus Reid poll, 51% of Canadians say they have no Will, and only 35% say they have one that’s up to date.
Do I need a Will?
If you’re over the legal age to write a Will, you should probably start thinking about getting one.
And if you’re in a long-term partnership or married, have children and/or pets, or own property, you should definitely consider writing a Will.
One thing people don’t consider enough is the protection of their digital assets (like websites, domain names, cryptocurrency, social media profiles, etc.). A Will should give your executor the power to deal with your digital assets.
Most people who have reached the age of majority have a digital footprint that could be worth more than property. The protection of your “digital estate” alone would justify writing a Will when you hit 18.
Can you write a Will if you’re under the age of majority?
Yes, under some special circumstances, you can write a Will if you’re under the legal age to make a Will.
In Ontario, as an example, minors can write a Will if:
- They are a member of a component of the Canadian Forces
- They are a sailor at sea in the middle of a voyage
- They are married or contemplating marriage
- They are legally emancipated
When someone under 18 in Ontario drafts a Will because they’re getting married, they need to specify that they’re writing the Will “in contemplation of marriage”. The person’s future spouse must be named in the Will, and the Will isn’t valid until the marriage is official.
Do I need a Will to protect my digital assets?
We mentioned before that, in the digital age, the term “assets” has expanded beyond physical property and what’s in your bank account. According to a recent Globe and Mail report, the average Canadian has more than $10,000 worth of digital assets.
Digital assets include:
- Social media and email accounts
- Digital accounts for bill payments
- Loyalty or reward points
- Cloud accounts
- Online gaming accounts
- Website domains
- Pay-per-click (PPC) revenue
- Dating apps
- Cryptocurrencies and non-fungible tokens (NFTs)
How do you want these accounts handled after you die? At the very least, you want someone to be able to access them so they can manage or even delete sensitive information.
In addition to digital assets, it’s a good idea to think about your “digital identity”. Epilogue’s Social Media Will offers a unique solution for this. It can help you set out your wishes with respect to Google/Gmail and your social media accounts. Once you’ve documented your wishes, store it with your other estate planning documents.
When you’re starting to think about protecting what’s called your “digital legacy”, start by asking these questions:
- How do you want your social media accounts to appear after you die?
- Do you want any particular accounts to be “memorialized”?
- Do you want any other accounts to be deleted?
- Do you feel weird about your family and friends reading your emails?
Read more about how to protect your digital assets here.
How do I know if my Will is legally valid?
We don’t want to assume, but if you’ve just turned 18 you likely don’t need a complex Will (unless you’re very wealthy or have a complicated family situation). That means you might not need to see a lawyer to prepare your Will.
If you feel like your Will may be complicated––if, for example, you are very wealthy or you have children or dependents who receive government support––then you may want to seek legal advice. But there’s nothing in the law that states a Will needs to be signed or notarized by a lawyer to be valid.
But you do need to take some steps to make sure your Will is legally binding.
The requirements of a legal Will
Until 2020, in most provinces a Will needed to meet three requirements to be legal:
- The person writing the Will––the testator––signed a physical copy of the Will (with a “wet signature”)
- Two witnesses were physically present to witness the testator sign the Will
- Two witnesses sign the Will “in the presence of the testator”
Important note about witnesses: Some people shouldn’t be witnesses, most notably people who are also beneficiaries of your estate or their spouses or family members.
Before the pandemic, the only exceptions to these rules were for Wills for active service members of the Canadian Forces, or other members of naval, land, or air forces.
Holograph Wills: The “napkin Wills” that are legal
Funny fact: You can technically write a legal Will on a napkin if you wanted to.
A holograph Will, despite its name, is an old-school Will that’s entirely handwritten and signed by the testator. Holograph Wills don’t need witness signatures.
The thing is, “handwritten” really does mean handwritten. No part of any holographic Will may be typed, and the handwritten portion of the Will must be able to stand on its own as a complete expression of your wishes. You must sign the Will in cursive.
But be warned that even if the handwritten portion of the Will makes reference to a digital asset, like an email or a document, the digital asset will not be admitted into probate (a validation process done by the court for most Wills).
Note that there is one province that doesn’t allow holograph Wills: British Columbia.
Pandemic amendments to the witness requirements for Wills
In Ontario, on April 7, 2020, under the Emergency Management and Civil Protection Act, the provincial government announced that testators and witnesses may use “audio-visual communication technology” during the signing of a Will or Power of Attorney. This law is now permanent (among some other important changes) as part of the recently passed Accelerating Access to Justice Act, 2021.
But not so fast––the amendment didn’t mean that e-signatures are allowed for a legal Will. At first, each person needed to physically sign the exact same copy of the Will in order for it to be legal.
So, the signing of a Will would go something like this: The testator would sign the Will first with other witnesses watching through audio-visual technology like Zoom. Then the physical copy of that signed Will would be sent to the first witness for signing, then to the second witness––with video calls each time.
In some provinces, if you wanted to take advantage of new rules about remote witnessing, you needed a lawyer to be one of the witnesses. But normally you don’t need a lawyer to sign your Will.
What happens if I don’t have a Will?
In Canada, if you die without a Will, you’ve died intestate.
Dying intestate means that your provincial government will decide on the distribution of your assets.
Every province is different, but this is usually what happens when you die without a Will:
- A spouse but no children: Your spouse inherits 100% of your estate.
- No spouse or children: Your parents inherit 100% of your estate.
- A spouse and children: Your spouse inherits some or all of your estate, and your children share what’s left (if any). The rules on proportions vary by province and size of the estate.
- No spouse but some children: Your children share your estate in equal portions.
- No spouse, children, nor parents: Your siblings share your estate in equal portions. If you have no siblings, your nieces and nephews split your estate.
You’re almost never too young to start the estate planning process. Whether you’re protecting digital assets or just want to make sure your loved ones aren’t guessing about what you would have wanted, writing a Will is one of the best things you can do to prepare for your future. Get a head start on your estate planning––and gain some peace of mind.