Where there's a will there's a way

What to expect when having a will prepared

Have you recently gotten married? Become a parent? Will you be travelling soon? There are many reasons to prepare a Last Will and Testament. This blog aims to inform about what you can expect when having a will and associated documents prepared.

Capacity
Prior to a will being prepared, it is first important that the “testator” (the person who is writing the will or who is having a will prepared by a lawyer) must be competent to do so. Essentially, the testator must understand that they are preparing a legal document and appreciate the consequences of doing so (ie. that they are designating the distribution of their property when they pass). A lawyer will assess capacity and advise if they are unable to prepare a will due to concerns about capacity. If the lawyer is unsure, they may ask for a letter from the prospective testator’s doctor with an opinion as to whether or not they are in a position to make a will.

Formalities
The preparation of wills is governed by the Wills Act, RSNL 1990, c W-10. The formal requirements of a will are set out in s. 2 of that Act. To be valid in Newfoundland and Labrador, a will must be made in writing and signed by the testator in the presence of two witnesses.

If changes are required to a will after it has been executed, it is best to speak to obtain legal advice prior to making any changes yourself, as handwritten changes to a will have specific requirements to be considered valid.
Many people are unaware that a marriage can void a will (if it was not made in contemplation of marriage). However, divorce does not automatically render a will void. You should seek legal advice about your situation if your marital status has recently changed.

If a person passes without a will, they are said to have died “intestate” and their property is distributed in accordance with the Intestate Succession Act, RSNL 1990 c I-21. 

Preparing to meet with your lawyer
In preparing to meet with your lawyer, it is a good idea to think about the following:

• Who will act as your “executor”? An executor is the person who will be responsible for carrying out the wishes outlined in your will. They should be someone you trust who you believe will have the ability to deal with the paperwork and duties that come along with being an executor when you pass. It is also a good idea to have an alternate executor in mind in case the person you appoint is unable or unwilling to act when the time comes. It is advisable to get the permission of your executor and alternate executor to name them in your will so that they will not be surprised to learn of their appointment when you pass.
• What property do you own and to whom do you wish it be given when you pass? You should know the full name, age, and place of residence of your “beneficiaries” (individuals who will receive assets in your will). Making a list of your assets and beneficiaries to prepare for your meeting with your lawyer will be very helpful. Items do not have to be of a high monetary value to be included in a will; many people choose to make “specific bequests” regarding items of sentimental value.

Other Considerations
Two other documents that are often prepared in conjunction with a will are an Enduring Power of Attorney (EPA) and an Advance Health Care Directive (AHCD). Similarly to a will, the “donor” (a person who makes an EPA) and a “maker” (a person who makes an AHCD) must be competent to do so.

EPAs are governed by the Enduring Powers of Attorney Act, RSNL 1990 c E-11, and permit a donor to appoint an attorney to deal with their affairs while they are incapacitated. The attorney is bound to act in the best interests of the donor. It is also recommended to appoint an alternate attorney in the event the attorney chosen is unable or unwilling to carry out their duties. An attorney should be someone you trust who will be in a position to act for you should you become incapacitated, and must be 19 years of age or over.

AHCDs are governed by the Advance Health Care Directives Act, SNL 1995, c A-4.1, and permit a maker to give instructions regarding their health care or treatment and/or appoint a “substitute decision maker” to make those decisions on their behalf should they become incapacitated. An AHCD comes into effect only when the maker is no longer competent to make and communicate their own health care decisions. An AHCD must be in writing, witnessed by at least two persons, and signed by the maker.
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Whether you are having these documents prepared for the first time, have documents in place which require updating, or simply have questions about estate planning, the lawyers at Budden & Associates would be pleased to consult with you regarding your individual needs.

-Allison Conway