Response to this question sent by Daughter June: Does a simple, straightforward will need to be done with a lawyer?
A will does not need to be written by a lawyer. But a will does need some basic features to be valid.
For example, wills must be in writing and people under the age of 16 cannot make a will. Two witnesses must sign, along with the will-maker, at the end of the will. There are a few exceptions to these rules (like for military personnel), but generally, this is all you need.
Of course, if you make a will without a lawyer, you run the risk that your final wishes will not be followed.
What if you leave everything to one person but they die before you? Did you provide for your spouse and kids? Can I leave everything to my pet cat?
These are the kinds of questions a lawyer can help you navigate to ensure your wishes are followed.
Drafting a will is only one piece of good estate planning. Whether you're leaving a large nest egg or an unpaid credit card, you will want to speak with a professional on how to minimize estate taxes.
And Daughter June, if you enjoy reading legislation on a rainy Friday evening (don’t we all?), you can read more about BC wills in BC's Wills Estates and Successions Act.
June’s question brings up at least two other issues: Did you provide for your spouse and kids? And, did you have capacity when you signed?
If you leave nothing to your spouse or children, not only could they be upset, your will may be changed by a court.
Next time you are discussing estates around the office, you will notice the cool people talking about the case of Tataryn v Tataryn. It is a decision from the Supreme Court of Canada. Even though it was decided in 1994, it is still important.
In Tataryn, the court assumed you want to financially help your spouse and children (if you have them). If you leave very little to one of them, you need to include a good reason why. Even then, your estate might end up in court. Estate litigation can be costly on both relationships and your bank account.
Let’s say your will is properly written but your mental capacity has diminished over the years. Maybe you are living with the early stages of dementia. There are several factors a lawyer checks for capacity when they draft a will like: Do you know what you own? Do you know who you are naming as a beneficiary? Are you on medication that could affect your mental abilities?
This is especially important if you think anyone might argue over your estate.
As always, email [email protected] with your questions. Your message might be chosen for next month’s article, so everyone can learn. I’m happy to help.
Craig Mracek is a practicing lawyer and dad living in qathet. This article contains legal information specific to BC only. Speak directly with a lawyer for legal advice.
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