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Thursday, September 22, 2011

The many types of wills - a dictionary

A will is a will, right? Most of us think we'd know a will if we saw one, but in fact there are several types of wills out there. Whether you're an executor trying to deal with an estate or you're trying to figure out what kind of will you need yourself, the array of possible wills can be confusing. I've often heard and seen the names of the various types of documents being misused, even by professional advisors. Wouldn't it be great if you only had a dictionary to tell you the difference between them? Read on, as I've devised my own little lexicon of wills to help you navigate the world of wills:

Codicil - This is an amendment to a will that is made when there is already a valid will in place. It is intended to make only a small change or supplement to the existing will without invalidating the will. It has the same signing and witnessing requirements as a formal will. Codicils, popular in the days when wills had to be typed individually, are beginning to fall out of favour with the advent of technology that allows us to prepare a new will quickly. They are valid everywhere in Canada.

Formal will, a.k.a. conventional will - This refers to a standard will that is prepared on a computer or word processor and that follows the rules of a valid will. This usually means that the will is signed at the end by the testator (i.e. the person whose will it is) in front of two witnesses who are present at the same time. These are valid everywhere in Canada.

Holograph will - This refers to a will that is 100% in the handwriting of the testator. It doesn't need witnesses, but it must be signed and dated by the testator. Holograph wills are valid in most, but not all, Canadian provinces and territories.

International will - This type of will is relatively rare, as it is only useful to high net worth people who have probatable assets in different countries and who do not choose to prepare separate wills in those countries. The form of an international will is set by a covention that is recognized internationally.

Joint will - This refers to a will which is intended to cover the wishes of two separate people (usually a husband and wife) in one document. It's an old-fashioned concept which was based as much on the wish to save typing time as it was on the lack of women's property rights. Today these wills are almost never prepared in Canada due to the legal complications that often arise when one person dies, leaving the other without a will.

Living will - A living will isn't actually a will at all. It's an American concept, a document in which an individual leaves instructions to cover an end-of-life or "pull the plug" situation. In Canada, living wills form part of health care directives (also known as personal directives, advance care directive and health care proxy, among other variations).

Military will - In general, an individual has to be at least the age of majority to make a valid will. An exception to that rule exists so that personnel of the armed forces, mariners and seaman in the course of a voyage may make a will even if they are under age. This type of will needs to be signed and dated but does not need witnesses. It may be formal or holographic. The phrase "military will" is more of a slang term than a legal term.

Mirror will, a.k.a. reciprocal will - This type of will is usually made by husbands and wives, but may also be made by others. Two mirror wills contain identical provisions, such as a husband and wife both leaving their estate to their children when both parents have died. They may be formal or holographic. I have often seen these wills referred to as mutual wills, but they are not. When a couple has mirror wills and one of them dies, the surviving spouse is free to change his or her will if they so choose.

Mutual will - This is a specialized type of will in which the two people (usually husband and wife) who make the wills specifically agree to a certain arrangement of disposing of their property. The agreement is a contract that is enforceable by law, so when one spouse dies, the other is not legally able to change the will. The agreement has to be spelled out very specifically in the document, or in a separate side agreement that is referenced in the will. These wills are not seen every day, but are still used when appropriate, such as in second marriages when both parties agree to leave their estates to their own children. These wills are almost never holographic as it's almost impossible to get the contractual obligations correct without the help of a lawyer.

Notarial will - This term refers to a will made in compliance with Quebec's Civil Code. The will would be signed in front of a notary and a witness.

1 comment:

  1. I love your website Lynne! Thanks so much for all of the excellent information. I tell my clients that the Power of attorney for personal care is similar to the US version of a living will

    Take care,
    Maureen

    ReplyDelete

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