Can You Make Your Own Will?
Is it possible to make your own will? The quick answer is yes. Handwritten wills can be legal in Ontario. Even an unsent text message was honoured as a man’s final wishes in Australia.
You could go one step further and buy a make-your-own-will kit.
It all sounds so simple.
But is a handwritten will or kit the best choice for you?
You should watch some of our videos to learn more.
Can You Make Your Own Will?
While it’s true using a lawyer costs money, handwritten wills and kits have their pitfalls. Your relatives may dispute a handwritten will in court. They could say you were too old or sick to understand your decisions or were coerced into making a will. They might even lose it or tear it up. Filling in the blanks in a kit is easy enough, but most are very basic.
By the time the average Ontarian makes a will, they can have children, aging parents or disabled family members (see Why A Henson Trust Could Matter For Your Family if that is you). They want their will to provide for heirs and honour their wishes. They probably don’t want their family to meet in court to dispute the contents. That could be unpleasant and expensive.
Your final income tax return, probate fees and unplanned funeral costs will be due after your death. Your family could be overwhelmed making these arrangements without direction. They could even be liable for some costs while the estate is being settled.
Estate Law Is Complex
Then there are debts that need repaying. Does your executor know what to do (or even where your will is kept)? Say you had a mortgage that needed to be kept up until your estate was final. Could assets be sold or life insurance collected in time to ensure your partner and children keep their home?
Think about your RRSPs, TFSAs, mortgages and other investments. When you took them out, you listed a beneficiary. These assets aren’t automatically included in your will. Instead, they may be paid ou
ut directly. Assets you own jointly with business partners may also go directly to a surviving partner. Your family could be blindsided if they thought these assets belonged to them.
Should You Make Your Own Will? Talk to a lawyer- 1-844-466-6529
Finally, imagine what would happen if your entire family died in a house fire or car accident. The court might have to step in if you failed to think through what to do in this case.
Read more: What Happens When You Die Without A Will?
Or you may have family members you don’t want to inherit your estate. You could probably use some help wording that part of your will.
You may not realize it, but the court can set aside a self-made will. The Ontario Superior Court of Justice is usually reluctant to override your final wishes. But it has happened.
Five Reasons Your Will Could Be Invalid
Are you sure your self-made will can survive a court challenge? Let’s say you:
- Forget to sign your will.
- Typed your will and signed it.
- Got remarried.
- Updated your will.
- Favoured one heir or a new caregiver.
A will made in Ontario is usually signed by you and two witnesses who won’t benefit from your death. When you use a will kit, this is spelled out. What if you wrote out your will by hand though? A handwritten will is called a holographic will. The will must be final. In other words, not a draft. And, it must actually dispose of your assets. This is called “a fixed and final expression of intention” and is based on a 1962 court decision where a family member found a holographic will 17 months after her aunt’s death (Canada Permanent Trust v Bowman,  SCR 711).
Can you Make Your Own Will? Call our lawyers if you want a will professionally created @ 1-844-466-6529
You must write and sign a holographic will yourself. You do not need witnesses, but your heirs must be able to prove it’s your handwriting. If you forget to sign the will and have no other will, the court will declare your assets intestate. The court will take over deciding who gets your assets.
Suppose you typed your own self-made will. You signed it, but did not have it witnessed. Doesn’t that make it valid? Unfortunately not. The court needs to know you made the will. For that reason, it needs to be handwritten. Merely signing your own typed will is not enough. And it’s important that all parts be handwritten. An email or typed list attached to handwritten will you alone signed is not enough. In this case, only the handwritten part will be valid.
Your family may be happy that your new marriage worked out. But imagine your ex-spouse’s surprise when your old will is declared invalid. Marriage voids any past wills. Plans you made for your now ex-spouse automatically vanish when you divorce. A lawyer’s advice can make sure there are no nasty surprises after your death.
Remember that old will you made years ago? You updated it just last year. Imagine the confusion when your family comes across two wills in your effects, Would they know which one is your last will and testament? Hopefully, you signed and dated the last holographic will you made. That is the only version the courts will recognize. If confusion persists, both wills could be set aside.
Courts can be concerned when someone suddenly makes or changes a will before their death. When you are infirm, vulnerable or elderly, you could easily be on their radar. A recent case in Ontario Superior Court of Justice (Daniel Estate (Re), 2019 ONSC 2790) had a happy outcome. Neighbours of an elderly, disabled couple who eventually became their powers of attorney, and almost full-time caregivers, were awarded over $757,000 for their 20-year commitment to helping their friends.
Estate Law Firm
Their situation turned out well because the surviving wife, her lawyer and court agreed on a fair sum. What courts are on the watch for is heirs or caregivers who could have coerced someone into leaving assets to them. Your will could be overturned if your other heirs or the court question its contents.
And that’s only the start of the complications that come with making your own will or using a wills kit.
Talking to a ClearWay Law lawyer helps you figure out all of your assets and where they will go when you die. We ask questions about your plans and offer legal advice on how to deal with issues you may not have thought of. Your will is kept in a safe place and our firm has a copy. We even have options if you need to keep your costs down.
Make Your Own Will?
So many decisions. For help deciding what to do with your estate, contact our law firm via the live chat function in the bottom right of the screen.