Wills: the what and the why?
Why have a will?
A will is a legal document that details your wishes for how all of your property, whether personal or real, is to be treated after you pass away (called an "estate"), and optionally funeral arrangements. When properly signed and witnessed, a good will provides peace of mind for you and your family, ensuring that there are no disputes or uncertainties about how your property is disposed of, or what your final wishes were.
Without a will, you are deemed to have died intestate, which means all of your property will be disposed of according to government regulations; this is usually a very slow and inefficient process, that will leave your loved ones with far less than they might have.
Of course, a will has to be accepted as valid in the first place in order to achieve these goals.
There are a number of requirements for a will to be valid, and they have to be met to be accepted by the courts (in a process called probate, usually required for estates) and the beneficiaries (those who will inherit the property described in the will). A will written on one's own can be disputed in a number of ways, such as by casting doubt on the writer's capacity (i.e. they were not capable of making decisions on their own, either due to a medical condition or due to emotional, financial, or other pressure from a potential beneficiary).
With a lawyer's help, a will can be both detailed enough and proven to be drafted with the person's true wishes in mind; a lawyer determines that there is no disability or pressure on the will writer (called a testator). A lawyer can also help you to anticipate certain scenarios that could cause a dispute; what if a person named in the will dies before the testator? Who does property go to in that case? What if the person named as executor dies, or refuses to act? A well-drafted will has alternatives for all of these situations, preventing lengthy, stressful, and expensive court battles.
It is also important for a lawyer to draft the will, as they are best informed about both recent changes to legislation and regulations (which free guides often neglect), as well as making certain that the language of the will is unambiguous and clear about the testator's wishes. A lawyer can also advise you on when you should write a new will to avoid changes in your life making it invalid. In addition, lawyers will advise you when there are more complicated issues at hand, such as if some of your property, or your beneficiaries, are in foreign jurisdictions, which may have their own laws conflicting with those of Ontario.
There are other documents that lawyers often prepare alongside wills, called Powers of Attorneys, as well as living wills. These have the same requirements of witnessing and signatures as a will, but deal with somewhat different subject matter, and will be the subject of a future blog post.
This blog details the many legal issues among Luka's practice areas, for a general audience. None of this information is a substitute for legal advice.