Should my spouse and I have a Joint Will or Separate Wills?
We typically do not recommend Mutual or Joint Wills because they are difficult to change after the death of one party – even if clear intent and agreement is reflected in the Will. This means that if you change your mind after your spouse’s death, you may not be legally able to make changes at that point. We recommend that you and your spouse make separate Wills – even if they say the same thing.
Can I change my Will?
You can change your Will at any time by contacting your lawyer. If the changes you wish to make are fairly minor, they can be made in a separate document called a “Codicil.” A Codicil requires the same formal signing with two witnesses as your original Will did, but is simpler than starting over with a new Will. There are ways to change a Holograph or Soldier/Mariner’s Will as well, but the key is to sign and date the changes personally.
It’s a good practice to review your Will every few years, or when any significant changes occur in your life, such as marriage, death, divorce, or significant changes to your finances.
You may also revoke your Will by destroying it, or by writing a Codicil that states you are revoking it. Some situations automatically revokes a Will, such as re-marriage. If you have more than one Will, the most recent Will will be accepted, unless a Court deems it to be invalid for some reason (for example, if you simply cross things out of an existing Will, or make handwritten changes to your formal Will).
What can I do if I want to change my Will, but one of my children says I do not have the mental capacity to do so?
Generally speaking, in order to have mental capacity to make a Will, you must:
- Know what a Will is and show intent to create a Will;
- Understand what property you have to distribute;
- Know the people who may have claims to your Estate; and
- Consider the connection between any beneficiaries in your Will and the property or gifts they are receiving under your Will.
As people age, the loved ones in their lives may become concerned that someone might influence them to change their Wills. If anyone pressures you to change your Will, or presents a new Will for you to sign, that person is unduly influencing you. The best way to avoid this is to visit with your lawyer alone to instruct him or her regarding any changes you may wish to make. Your Will is your personal business and no one else has the right to tell you what you should do with your property.
If someone is challenging your mental capacity, you can make arrangements to be assessed by a medical professional. If you are declared incapable, you have the right to request a review of this conclusion.
Why do I need Witnesses?
In a Formal Will, two witnesses are required to prove that you are the person who signed your Will. These witnesses cannot be a beneficiary in your Will, must be at least 18 years of age, cannot be a spouse or partner, and must have confidence in your mental capacity to make the Will. They don’t have to read your Will, but must watch you sign it and then must sign it themselves.
After I sign my Will?
While a lawyer will typically keep an original copy of your Will in permanent storage, we also recommend that you store your copy of the Will in a safe place, like a safety deposit box or a fireproof safe at home. We also recommend that you keep any important and relevant documents next to your Will to make it easier for your Personal Representative to take care of your affairs – things like life insurance, mortgage, and financial documents, as well as a list of your property (including debts) should be itemized and kept close to your Will.
Always let your Personal Representative and your loved ones know where they can find an executed copy of your Will.
Can a Minor make a Will?
Typically, you must be 18 years old to make a Will. However, there are a few situations where someone under 18 is legally entitled to make a Will:
- If you have a child;
- If you are married or in an “adult interdependent relationship” (with or without children);
- If you are an active member of the Canadian Forces.
What about Will Kits?
You are certainly not legally required to hire a lawyer to do a Formal Will; however, there are a number of things you should consider before using a Will Kit:
- These kits typically contain disclaimers noting that the information contained in the kit is not legal advice and to consult a lawyer for legal advice. This means that if complications arise from any errors in your Will from a kit, you have no legal recourse, and may incur additional costs to ensure that your wishes are honoured. All practicing lawyers have professional liability insurance to protect you against any such errors.
- A lawyer is required to determine whether you have the mental capacity to make and execute your Will. This may be most beneficial should a family member try to challenge the validity of your Will on the grounds that you lack sufficient mental capacity. With a Will Kit, you have no independent confirmation of your mental capacity at the time of your signing the Will.
- A family member may also try to challenge your Will with the allegation that it was made “under duress” or “under undue influence.” A lawyer will make every effort to ensure that you are not unduly influenced when you sign your Will, and that other interested parties are not present when you sign your Will – providing affirmative proof of your mental state and independence to act.
- While utilizing an Alberta Will Kit will certainly save you money, it does take considerable time to read through and understand the various issues involved in preparing the Will. Your lawyer will explain all relevant issues connected with your Will and Estate – saving you time and providing peace of mind.
Please feel free to contact us if you have any questions that aren’t answered on our site, or to schedule an appointment. We’re always happy to chat with you about any of your legal needs.
- Phone: (587) 272-2050
- E-mail: firstname.lastname@example.org