Making your Will official
How to make a Will official?
Once you’ve made all of the important decisions and documented your wishes in your Will, it’s time to make it a legal document!
In order to make your Will legal and valid, you need to sign it according to the laws of your province. This is called executing your Will.
Each province has its own specific rules when it comes to estate planning. For example:
- In Ontario, you need to print your Last Will and Testament and sign and date the last page in the presence of two witnesses. The witnesses have to be physically present with you. Each of your witnesses must also add their signature and the date at the end of your Will in the presence of you and each other. It’s also recommended everyone initial each page of the document. While not required to make a Will legal, it’s also recommended you complete an Affidavit of Execution with one of your witnesses and a lawyer or Notary Public (more on this later!)
- In Alberta, print your Will and sign it in the presence of two witnesses. Your witnesses also need to sign their name and date the last page in the presence of you and each other. Again, it’s recommended you all initial each page of the document. While not required to make your Will valid, it’s also highly recommended to complete an Affidavit (called an NC8 document.) More on affidavits later in this post!
- In B.C., you need to print your Will and sign it with two witnesses physically present with you. Both your witnesses must also sign their name and date the last page of the document. Similarly to Ontario, it’s also advised that you initial each page of your Will as well. In B.C., you’re also required to register the location of your Will with the BC Vital Statistics Agency. Registering your will comes with a small fee ($17 CAD). B.C. is currently in the process of deciding whether or not to allow electronic Wills. There are obvious benefits to this (especially with recent restrictions due to the COVID-19 pandemic,) but some potential drawbacks as well, so watch this space!
Can anyone be a witness?
In Ontario, any two adults of sound mind can technically witness your Last Will and Testament to make it valid. That said, there are some people who shouldn’t be witnesses because it might mean forfeiting their rights under your Will.
The following people shouldn’t be a witness:
- Anyone who’s a beneficiary under your Will (generally family members)
- The spouse/partner of any beneficiary under your Will
- Anyone else who can potentially benefit under your Will (like the child of a beneficiary)
- Minor children
It’s also good practice not to have anyone else named in your Will–like your executor or guardian–act as a witness.
Learn more about who can witness your Will here.
Do I need a lawyer or notary to approve or validate my Will?
No. As long as you comply with the laws of the province where you live, your Will is valid. You don’t need a lawyer or notary to act as a witness or to confirm that your Will is valid.
Can I sign my Will electronically?
You can’t sign your Will electronically, yet. Every province requires an original, physical signature on a printed copy of your Will. Each witness should also physically sign your Will in your presence.
It appears that British Columbia will be the first province to allow for a Will to be signed electronically, but it’s not in force yet.
While electronic signatures are not yet legal, virtual witnessing is starting to be considered by many provinces. During the COVID-19 pandemic, many provinces temporarily allowed virtual witnessing while stay-at-home and emergency orders were in place. Now, that the orders are lifted, some provinces are considering keeping this around.
While virtual witnessing certainly makes executing a Will during a pandemic more accessible, it by no means makes it easier. Learn more about that here.
Are there any circumstances where I don’t need witnesses?
You might have heard stories of someone writing a Will without witnesses.
Non-witnessed Wills may be allowed under special circumstances when the testator handwrites the entire Will. In the world of Will-writing, these cases are the exception, not the norm.
A handwritten Will is called a holograph Will (or holographic Wills,) and they can lead to a lot of trouble. For example, how can a court trust a Will is valid if there are no witnesses to its signing?
Courts in Newfoundland and Labrador, Nova Scotia, and Nunavut don’t recognize them at all. Even if your province recognizes holograph Wills, it’s generally a bad idea to choose to put your final wishes in one unless you have no other choice.
Are there any other steps I need to take?
Once you’ve signed and witnessed your Will it’s officially legal and valid! But there are some other steps you can take to make sure your loved ones are protected in the long term.
In provinces like Ontario and Alberta, it’s important to have one of your witnesses put their signature on an Affidavit after your Will is fully executed. These Affidavits can differ slightly depending on which province you live in, but they generally confirm the same key things:
- The date you executed your Will;
- The name and address of you, the testator;
- The names and addresses of your witnesses;
- That everyone signed the Will in everyone else’s presence.
- The Affidavit will also have a copy of your most recent and valid Will attached.
What happens if I don’t complete an Affidavit?
If neither witness swears an Affidavit, your Will is still valid, but it can be much more costly and time-consuming to administer. The Affidavit confirms that you, the testator, and your witnesses followed all the proper procedures when signing your Will.
The way it works is that your witness swears their Affidavit in the presence of a Commissioner for taking Affidavits (like a notary or a lawyer.) The commissioner then signs the Affidavit themselves and puts a marking on it (usually a stamp) that lets the courts know they were qualified to swear your witness’s Affidavit.
How Affidavits work across Canada
In Ontario, it is called an Affidavit of Execution. The Affidavit of Execution is signed by one of the witnesses in the physical presence of a commissioner of oaths (e.g. a notary or a lawyer).
In Alberta, there is a similar process with the NC8 form – the Affidavit of Witness to a Will.
There is no requirement for the Affidavits to be completed right after the Will is executed. But it is usually a good idea to take this step as soon as possible, so it is not forgotten.
In each case, your executor can then use your witness’s Affidavit in court to prove that your Will is valid and legally binding. An Affidavit can be sworn with a notary public, but it doesn’t have to be. Any Commissioner for taking Affidavits can help your witness swear their Affidavit, too.
In British Columbia, no Affidavit is required.
Powers of Attorney and incapacity documents
Planning for incapacity is an important part of comprehensive estate planning and refer to the legal documents that set out who you want to make decisions on your behalf if you are ever unable to make those decisions for yourself.
There are two types of “incapacity documents” that people commonly create at the same time they create a Will.
- In Ontario, it’s a Power of Attorney for Property and a Power of Attorney for Personal Care.
- In Alberta, it’s an Enduring Power of Attorney and a Personal Directive.
- In BC, it’s an Enduring Power of Attorney and a Representation Agreement.
Read more about the differences between them here.
Store your Will somewhere safe
You’ll need to store the original, physical copy of your Will (with the completed Affidavit of Execution attached) somewhere that’s safe but accessible.
You can make digital or physical copies to send to trusted friends or family members, but the one original valid copy of your Will is the only one that is going to be accepted as your legal Will. So, find a safe spot where your executor can access it easily when the time comes.
You could store your Will at home in a safe or locked cabinet. However, if you choose to do something like that, make sure you’re not the only person that knows the combination or has the key. It’s also a good idea to make sure whatever you use to store your Will in is fireproof and waterproof (you know… just in case.)
It may seem counter-intuitive, but avoid storing your Will in a safety deposit box. A safety deposit box may be a good place to store some of your important documents. But if you’re not alive, the bank won’t let anyone access it.
Most importantly, regardless of where you store your Will, make sure your executor knows where to find it, and how to access it.
Talk to your family and friends
This is probably the hardest step. Conversations around end-of-life and death (especially our own) uncomfortable to say the least. But for practical reasons, people have to know where your Will is stored and how to access it, especially your executor.
If you have young kids, you’ll want to name a guardian. Make sure your guardian knows they have this role and feels comfortable with it. Similarly, you may have specific wishes about things like organ donation or whether you want to be buried or cremated. As hard as it is, it’s important to have these conversations with the people that are closest to you so they know.
Learn more about how to approach these sensitive conversations here.