We all know that we should have a will. However, many of us don't. Why? I am speculating, but I guess preparing a will is one of those tasks that create work and, other than the relief of knowing your affairs are in order, gives very little back. To make a will, you must first phone your lawyer's office and make an appointment. You also must budget for it. Wills are not the most expensive legal services, but still. Spending that money on a long weekend getaway would certainly be more fun.
If you don't make a will, then on your passing, the Intestate Successions Act will direct your assets' distribution. Don't worry; the government doesn't get anything unless you die with no known kin. If you are married and have children (with that spouse), the Intestate Successions Act states that your spouse inherits everything. No problem there, as most couples want their spouse to receive their estate. However, suppose this is your second marriage, and you have children from a previous marriage. In that case, the Intestate Succession Act starts splitting things up between your current spouse and your children from your previous relationship. It starts getting complicated. Because if you die without a will, no one is named executor. Someone from your family, or if none are available or willing, a friend will have to step forward and apply to become administrator. Your administrator will then distribute your estate. However, the administrator must distribute your assets in accordance with the law. They may distribute it in ways you never intended. But if you die without a will, you forfeit the right to have your assets distributed as you wish. So now that you know you should prepare one, how do you go about it? Under Manitoba law, your will must meet the requirements of the Wills Act. The Act recognizes two types of wills: holograph and "standard" wills.
A holograph will is written entirely in the testator's handwriting. The testator must show their intention that the document represents their testamentary intentions. So you should include phrases like: "This is my last will and testament" or "when I die, I want my assets distributed...". The testator must also sign at the bottom or end of the document. Cecil George Harris of Saskatchewan created the most famous holograph will when he etched his wishes on a tractor's fender. While trapped underneath the tractor for 10 hours, he etched: "In case I die in this mess, I leave all to the wife." The fender was cut off and submitted to the court for probate. That fender is now on display in the law library at the college of law in Saskatchewan. While holograph wills are an interesting legacy from our past, they often cause significant problems. I had a file where a handwritten document was found but did not meet the act's exact requirements. Was it a will? The document showed a testamentary intention but wasn't signed by the testator. Our options were to obtain a court order or negotiate a resolution between the heirs under the Intestacy Successions Act and those found in the document. In the end, we managed to negotiate a resolution. However, the legal fees far surpassed the cost of preparing a will and distribution was delayed for two years.
A standard will must be typed and witnessed by two people who are not beneficiaries. You can prepare a standard will without a lawyer's assistance, but if you do, you may end up with the same problems associated with holograph wills. If you lose your will, courts presume you destroyed it. Courts rarely accept photocopies, so if you lose the original, the Intestate Successions Act prevails.
Finally, documents prepared with the help of a will kit do not meet the act's requirements unless they are properly witnessed in accordance with the act. These kits are a mix of a typed document with blank spaces where you must enter information specific to your estate (i.e. executor and beneficiary names). So while they are partially in the testator's handwriting, they are not entirely in their handwriting, so the will kit, like ordinary wills, must meet the formalities under the act.
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).
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