On this page
- What Makes a Will Legally Valid?
- Steps to Writing a Legally Binding Will
- Signing and Witnessing Rules You Must Follow
- Types of Wills and Their Legal Strength
- Common Mistakes that Invalidate Wills
- What Happens if you Do Not Have a Legally Binding Will?
- Updating or Replacing your Will
- International Perspective on Legally Binding Wills
- Keeping your Will Safe & Accessible
- Conclusion on how to make a legally binding will
The moment people here about a will, they’re immediately imagining it belongs to Elon Musk, or Jeff Bezos. The point is that you really don’t need to be that wealthy to write a will. As long as you have people you care about and enough assets to distribute, a will is necessary.
Yet, millions of adults today delay estate planning because it feels complicated or out of their reach. The truth is simple and a bit uncomfortable. If you don’t understand how to make a legally binding will and you do nothing, the government decides who inherits your assets!
In Canada, passing on without a valid will triggers “intestacy laws”. These laws follow a fixed formula, they have zero regards for your personal wishes, verbal promises, or familial relationships.
On the bright side, learning how to make a legally binding will is not as challenging as it may seem. Once you’ve grasped the important legal will requirements, the whole process becomes as easy as a walk in the park!
What Makes a Will Legally Valid?
A will is a legal document. Hence, its validity is confirmed when it meets age, capacity, and execution requirements as specified by your provincial law. Mostly importantly, a will must be “written”.
Verbal instructions are rarely enforceable or even acceptable as legally binding wills, the best they can do is to show your intent toward the distribution of your assets. On the other hand, a written document is basically set in stone, it creates clarity and provides solid proof for provincial courts.
While it’s clear that a will must be written, some level of flexibility is accepted in your method of writing. Most wills are either typed or handwritten. Some online platforms provide services that helps to draft good wills.
However, you must still print and properly sign the document before it can meet legal will requirements.
Another criterion that defines the validity of a will is age. While the minimum age requirement is 19 years in some countries, it’s set at 18 years in most Canadian provinces. Regardless, there are minor exceptions for married minors or military personnel.
Asides from age, the validity of almost all legal documents and non-legal documents depend on the writer’s mental capacity. At the time you’re required to sign your will, you must at least be able to identify your properties, who your beneficiaries are, and what the will is doing.
If the writer doesn’t possess a stable mental capacity, his will can be challenged. It’s for this reason that courts examine medical records, witness statements, and surrounding circumstances before passing a verdict.
Steps to Writing a Legally Binding Will
If you want to know how to make a legally binding will, we’ve created a structured list just for you!
1. Take inventory of your assets
First start by listing everything you own including your real estate, savings accounts, investments, vehicles, business interests, insurance policies, valuable personal items, etc.
With wills, vague wording is your enemy! An example is saying “my house” instead of a specific address. Wills are much easier to enforce when they’re written in specific language and without any room for contrary interpretations.
2. Choose your beneficiaries carefully
If you’re going to write a will, it often means you’ve identified your beneficiaries beforehand. Whether it’s individuals, charities, a spouse, your kids, or organizations, be sure to list them out clearly.
Remember, using vague instructions can lead to heavily twisted interpretations of your will. Never make the mistake of underestimating the importance of precise wording when writing a will.
3. Appoint an executor
A will is only a “will” because you won’t be around to execute it yourself, hence the need for an executor. Usually, your executor manages your assets and distributes them to the concerned parties at the appropriate time.
Ensure you choose someone responsible as your executor, a professional executor may be the better choice.
4. Draft the document
For this part, it’s widely advisable to hire a lawyer or use an online service. Online platforms are cost effective and convenient. However, you remain responsible for ensuring the final document meets all legal will requirements.
5. Sign properly
This step looks “obvious” right?
You’d be surprised when you find out how often will disputes pop up just because a benefactor or heir felt the relevant signatures were forged. If you’ll come out to say you know how to make a legally binding will, it means you have understood how important proper signing is.
6. Store the original copy of your will safely
Courts demand the original signed documents during probate processes. Store it securely and inform your executor of its location.
Signing and Witnessing Rules You Must Follow
Proper drafting and minor details can be the difference between a valid will and an invalid one. For this reason, you “must” sign your will in ink at the end of the document.
Also, two witnesses must be present at the same time, they must watch you sign, and they’re to sign the will themselves. Another important point to note is that no court accepts beneficiaries or spouses of beneficiaries as witnesses to a will.
For emphasis, remember that all three individuals (you and two witnesses) must be physically present together at the time of signing for your will to be valid.
Remote witnessing is permitted only in certain provinces and of course, under strict conditions.
Types of Wills and Their Legal Strength
Wills are not so often used amongst middle class citizens. It’s so much that a lot of people do not know that there are types of wills.
Wills come in different forms and each one commands a different level of authority and protection. They are:
Formal wills
These are typed, printed, signed, and witnessed. They are the most secure form of wills and by far the safest option for most Canadians. They also meet standard legal will requirements and face fewer contests or disputes.
Holographic wills
A holographic will is entirely handwritten, signed by the testator, and some provinces recognize them under civil law traditions. With holographic wills, the catch is that courts must verify the handwriting authenticity.
If you’re not writing a will to distribute large and complex estates, holographic wills might be a good option.
Online wills
With rapid innovation and modernization, online wills have become increasingly popular. Some online platforms now provide guided templates coupled legal explanations.
However, drafting your will digitally does not remove the obligation to comply with provincial signing rules.
Common Mistakes that Invalidate Wills
Especially if you’ll be distributing massive assets, small errors in your will can end up making a mess of your assets and the relationship between your beneficiaries. Some of the most frequent mistakes include:
- Improper signing at the end of the document
- Failing to have both witnesses present at the time of signing
- Accidentally choosing a beneficiary as a witness
- Making handwritten edits after signing
- Misplacing the original document
Another issue that’s not discussed enough is undue influence. Undue influence gives courts the right to invalidate your will if some pressured you into signing or making changes to the will.
What Happens if you Do Not Have a Legally Binding Will?
It’s quite straightforward. If a person dies without a valid will, provincial intestacy laws control their assets. These laws distribute assets based on a special formula that puts spouses and children first in line to inherit.
Parents and siblings are often considered when there are no spouse or kids. In some jurisdictions, unmarried partners may receive nothing and stepchildren may not qualify, at least not automatically.
Updating or Replacing your Will
It’s quite obvious that any will would be outdated years after it was written. This is primarily because you’d have experienced major changes and growth in your family, business, interpersonal connections, etc.
It’s only normal that these changes warrant a review or complete change of the contents of your will. Most people prefer to draft a new will or use a codicil. However, your codicil must be signed and witnessed properly.
International Perspective on Legally Binding Wills
Most common law countries follow standards similar to Canadian standards. The United Kingdom requires two witnesses and most U.S. states follow similar execution rules, Australia too.
Although, civil law jurisdictions, including Quebec and parts of Europe, may allow notarized wills or alternative formats. The point is that you may need separate wills if you own assets abroad.
Understanding these global similarities strengthens your overall knowledge on how to make a legally binding will anywhere.
Keeping your Will Safe & Accessible
What’s the use of a well-written will that can’t be found after the passing of its writer?
You’ll do yourself and your beneficiaries so much good by properly and safely storing your will. It makes the will reading and enforcement process seamless. Some storage options include your lawyer’s office, a safety deposit box, fireproof home safe, etc.
Whatever option you end up choosing, be sure to relay the location to your executor.
Conclusion on how to make a legally binding will
Learning how to make a legally binding will is really not as challenging as some would have you believe. When writing a will, your priority should be clarity in your wording and accountability for each asset you possess.
If your estate is simple, you can handle the process yourself. However, if you own properties abroad, a large company, a blended family or you expect some form of conflict, it’s better to seek professional hands. Either way, be thorough!
FAQs about how to make a legally binding will
Your will must be in writing, signed by a testator, and witnessed by two qualified adults. The testator must be of legal age and sound mind.
No, you don’t. You can draft your own will or use an online service. However, you must follow all legal will requirements, or your will be declared legally invalid.
Yes. A holographic will must be entirely handwritten and signed by you. Although, it will face greater scrutiny in court.
If properly executed, yes. You must print and sign it with witnesses.