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In the past, I've discussed how will kits are problematic in Manitoba. I briefly discuss them here and here. In this post, I want to expand on why a will kit creates challenges in Manitoba. But if it clearly expresses the testator's intention (the person making the will), why does it cause problems?
A will must be in writing and properly witnessed. The reason will kits cause problems is that they don't meet the Wills Act requirements unless they are properly witnessed. The Wills Act includes the following sections: A will is valid only when it is in writing. Subject to sections 5 and 6, a will is not valid unless,(a) At it's end it is signed by the testator or by some other person in the presence and by the direction of the testator;(b) The testator makes or acknowledges the signature in the presence of two or more witnesses present at the same time; and (c)Two or more of the witnesses attest and subscribe the will in the presence of the testator.
So, firstly, a will must be in writing. A verbal will is not valid (because it's impossible to confirm with the testator once he or she passes away.) Secondly, the testator must sign, and his or her signature must be witnessed by two individuals who then also sign the will.
If this is incomplete, then the will itself does not meet the formalities necessary under the Will's Act. However, a testator can also create a will in their handwriting. We refer to these types of wills as Holograph wills. The act states the following at s.6:
A person may make a valid will wholly in the person's handwriting and signed at its end by the person, without formality, and without the presence of, or attestation or signature by a witness.
Again, if the will is entirely written in the testator's handwriting, no witness signatures are required - this is the "formality" portion.
Will kits are a combination of pre-printed or typeface documents with blanks where the testator enters information particular to their estate. These include the names of the executors and beneficiaries. These are usually handwritten. However, because the entire document is not written entirely in the testator's handwriting, the documents would not fall within the meaning of s. 6.
Therefore, the complete will must be under consideration as all other wills. Two witnesses must observe the testator sign, and they must also include their signatures.
When individuals fill out these forms, they often leave areas blank or do not understand the pre-printed text's meaning. So, when they do fill in the blanks, they often include the wrong information. People also neglect to have two people witness their signatures.
If a will does not meet the formalities necessary under the act, i.e. the two witness signatures, they will cannot receive probate under the normal process. A person who wishes to have the will confirmed as valid must apply to court and appear in front of a judge to have the document proved.
S. 23 of the Wills Act grants the power of a court to confirm a will when it does not meet the requirements of the Act. It states:
Dispensation power
Where, upon application, if the court is satisfied that a document or any writing on a document embodies
(a)The testamentary intentions of a deceased; or
(b)The intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will;
The court may, notwithstanding that the document or writing was not executed in compliance with any or all of the formal requirements imposed by this Act, order that the document or writing, as the case may be, be fully effective as though it had been executed in compliance with all the formal requirements imposed by this Act as the will of the deceased.
At best, if the will kit is relatively clear and unambiguous, a court will undoubtedly grant the request. However, it adds time and cost. At worst, if the will is ambiguous and potential beneficiaries are at odds, the matter can drag out for years in litigation, especially if the assets are substantial.
While will kits can be valid, they are rife with potential hazards. An individual is much better off having a lawyer draft their will. Costs for preparation will be a fraction of the costs of an application to the court or, in a worst-case scenario, litigation. As the old adage goes: "an ounce of prevention is worth..."
This article is presented for informational purposes only. The content does not constitute legal advice or solicitation and does not create a solicitor-client relationship (this means that I am not your lawyer until we both agree that I am). If you are seeking advice on specific matters, please contact one of our lawyers at 204.925.1900. We cannot consider any unsolicited information sent to the author as solicitor-client privileged (this means confidential).
We offer clear, understandable wills and estate planning in Winnipeg, Manitoba. Our mission is to make law more accessible to Canadians.
