Last Will and Testament

A Will is a legal document that sets forth the wishes of a person (the testator) after death. The Will gives directions regarding the distribution of property and the care of minor children, if any, after death, and is the centrepiece of an estate plan.

The Will names one or more executors who have been entrusted with the duty to carry out the wishes of the deceased. Also, it provides the executor(s) with instructions on how the estate should be distributed.

In most jurisdictions, the testator must be at least 18 years old to make a Will. In addition, the testator must be of "sound mind" to make a Will, which means that:

• The testator understands he or she is making a Will and knows what a Will is;

• The testator understands his or her relationship to those mentioned in the Will; and

• The testator understands what type of property he or she owns, the extent of that property, and how he or she intends to distribute that property.

A Will should be reviewed from time to time to ensure that it still meets the needs of the testator and that the property will be distributed according to his or her wishes. It is especially important to review a Will on the following events:

• The testator gets married or divorced;

• The testator is unmarried, but has a new partner;

• There is a significant change in the amount of money and property the testator owns;

• The executor or a significant beneficiary in the Will dies;

• There is a birth or adoption of a child in the testator's family;

• The testator changes his or her mind about the provisions in his or her Will.

How to use this document

To be valid, a Will must disclose the intention of the testator in disposing his or her property and be signed in front of two witnesses.

A typical Will provides that all debts of the estate including taxes are to be paid first. Also, it names one or more executors, who will be responsible for administering the estate, and then sets out the powers of the executor(s) in administering the estate.

The Will may provide for their compensation or it may be silent, in which case compensation is governed by law. A Will further sets out any specific gifts of property or money that are to be made. The remainder that is left after all of the specific gifts have been given and all debts have been paid is called the residue of the estate.

A Will should contain a residue clause specifying how the residue should be distributed. The residue is often the largest part of an estate, but its value will depend on the assets and debts of the testator at the time of his or her death and cannot be determined at the time the Will is made. The larger the specific gifts or debts, the smaller the residue.

For a Will to be formally valid, it must be signed by the testator and two witnesses at the same time in the presence of each other. The witnesses must not benefit under the Will. After the Will is witnessed, one of the witnesses must sign an Affidavit of Execution.

Applicable Laws

In Canada, wills, testamentary succession and estate law is a provincial or territorial matter. There are many different laws in each jurisdiction that govern Wills, trusts, executor powers and compensation, and so forth. The following are the primary statutes governing Wills:

Alberta: Wills and Succession Act (RSA 2010, Chapter W-12.2)
British Columbia: Will, Estates and Succession Act (RSBC, c 13)
Manitoba: The Wills Act (CCSM, c W150)
Northwest Territories: Wills Act (RSNWT 1988, c W-5)
Nunavut: Wills Act (RSNWT 1988, c W-5)
Ontario: Succession Law Reform Act, R.S.O. 1990, c. S.26
New Brunswick: Wills Act (RSNB 1973, c W-2)
Saskatchewan: Wills and Succession Act (SA 2010, W-12.2)
Yukon: Wills Act (RSY 2002, c 230)
Nova Scotia: Wills Act, RSNS 1989, c 505
Newfoundland and Labrador: Wills Act, RSNL 1990, c W-10
Prince Edward Island: Probate Act (RSPEI 1988, c P-21)

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