Can You Write Your Own Will in Canada?

It’s a heavy subject, but writing a will is one of the most important tasks you can complete in your life. If you’re in Canada, you might be wondering: Can I write my own will? The answer is a resounding "yes," but, like everything legal, there are some crucial steps and details to be aware of to ensure that it holds up in court and truly reflects your wishes.

Many Canadians, to avoid legal fees or just because they prefer the DIY approach, decide to write their own wills. The good news? It’s completely legal to do so. However, it’s not as simple as scribbling your final wishes on a napkin and calling it a day. The process, while straightforward, comes with specific guidelines, legal considerations, and potential pitfalls that could render your will invalid if not done correctly.

Why Should You Write a Will in the First Place?

Before we dive into the specifics of writing a will yourself, let’s address why having a will is essential. In Canada, if you pass away without a will, known legally as “intestate,” provincial laws determine how your estate is distributed. This can result in your assets going to people you didn't intend, or in a manner that doesn’t reflect your wishes.

A will not only clarifies who gets what but also helps prevent disputes among family members. It allows you to:

• Appoint a guardian for your minor children.
• Name an executor to manage your estate.
• Dictate who receives your assets and how.
• Make charitable donations.

Most importantly, having a will ensures that your wishes are respected after your passing, and it saves your loved ones the legal headache during an already stressful time.

What Are the Requirements to Write a Will in Canada?

In Canada, the rules around wills differ from province to province. However, there are some general requirements that apply across the country. Here are the basic guidelines for a valid will:

1. Legal Age: In most provinces, you need to be at least 18 years old to make a will. In some provinces, such as British Columbia, you can create a will at 16.
2. Testamentary Capacity: You must be of sound mind. This means you understand the extent of your assets, know who your beneficiaries are, and comprehend the legal effect of making a will.
3. Voluntary: The will must be made voluntarily, without any undue influence or pressure from others.
4. Signature and Witnesses: Most provinces require that the will be signed by you and witnessed by at least two individuals who are not beneficiaries. These witnesses must also sign the will in your presence.

Key Note: In some provinces, like Ontario, you can write a "holographic will," which doesn’t require witnesses as long as it’s entirely handwritten by you. However, these types of wills are typically more susceptible to legal challenges.

Can You Write Your Own Will?

Absolutely. Writing your own will, also known as a “holographic will” if it’s handwritten, is legal in Canada. It can be an appealing option if you have a straightforward estate and don’t wish to involve a lawyer. However, writing your own will comes with risks. If it’s not properly executed or if there’s ambiguity, it could be contested or even deemed invalid.

Here’s how to ensure your will is legally binding and clear:

1. Start with a Title:

At the top of your document, clearly label it as your "Last Will and Testament." This removes any doubt about the document’s purpose.

2. Identify Yourself Clearly:

Include your full legal name, your address, and a statement declaring that this is your last will and testament. It’s also helpful to mention that you revoke any previous wills or codicils (amendments to a will).

Example:

“I, John Alexander Smith, residing at 1234 Maple Street, Toronto, Ontario, declare this to be my last will and testament, revoking all previous wills and codicils made by me.”

3. Appoint an Executor:

The executor is the person responsible for carrying out your wishes and managing your estate. Choose someone you trust, and it’s a good idea to name an alternate executor in case your first choice is unable or unwilling to act.

4. Name Your Beneficiaries:

This is where you list who will receive your assets. Be as specific as possible. If you’re leaving assets to a spouse, children, or friends, name them clearly and indicate what they will receive.

Example:

“I leave my 2019 Tesla Model 3 to my son, David Alexander Smith.”

You can also state what should happen if a beneficiary passes away before you.

5. Include Special Requests:

This is where you can get specific about sentimental items or unique assets. For example, if you have a piece of art, heirloom jewelry, or other special items, indicate who should receive them.

You can also specify any charitable donations you’d like to make.

6. Appoint Guardians for Minor Children:

If you have children under 18, naming a guardian is one of the most crucial parts of your will. Choose someone you trust to raise your children and, ideally, discuss this decision with them beforehand.

7. Witnesses:

As mentioned, most Canadian provinces require your will to be signed by you and two witnesses. The witnesses should not be beneficiaries of your will or married to a beneficiary.

Note on Holographic Wills: If you are writing a holographic will, ensure it’s entirely in your handwriting, as these do not require witnesses. However, they can be more easily contested, so be cautious with this route.

Common Mistakes People Make When Writing Their Own Will:

1. Not Being Specific Enough: Vague language can lead to misunderstandings. For example, if you say, “I leave my house to my children,” does that mean all children equally, or one specific child?

2. Failing to Update the Will: Life changes. Whether it’s a divorce, the birth of a child, or a significant increase in assets, it’s important to update your will regularly.

3. Not Considering Taxes: Depending on your province, there may be probate fees or taxes that your estate will have to cover. It’s worth speaking with a financial advisor to understand how to structure your estate to minimize tax impacts.

4. Ignoring Digital Assets: In today’s world, many people have significant digital assets, such as social media accounts, cryptocurrencies, or online businesses. Be sure to include instructions on how these should be handled.

5. Appointing an Unsuitable Executor: Choosing an executor is a big decision. While it may be tempting to name a spouse or child, consider whether they are capable of handling the financial and legal responsibilities involved.

When Should You Use a Lawyer?

While it is possible to write your own will, there are situations where consulting a lawyer is highly recommended. For example, if you have a large estate, multiple properties, businesses, or complicated family dynamics (such as children from previous marriages), it’s wise to seek professional legal advice.

Final Thoughts: Do-It-Yourself or Get Help?

Writing your own will can save you money and allow you to maintain complete control over the process. However, there is a trade-off in terms of legal risk. If your will isn’t clear, properly witnessed, or aligned with provincial law, it could be challenged or invalidated in court.

For most people with simple estates, a DIY will using the proper steps is sufficient. However, if you have any doubts or a complex estate, it’s worth the investment to consult with a legal professional to ensure your wishes are carried out exactly as you intend.

Remember: A will is a living document that should be updated as your life circumstances change. By regularly revisiting and revising your will, you can ensure that it continues to reflect your current wishes and financial situation.

In summary, yes, you can absolutely write your own will in Canada, but it’s critical to follow the right legal procedures. Doing so will give you peace of mind and protect your loved ones from potential disputes down the road.