Using a will kit: do you need the Affidavit of Witness?

If you have used a will kit, or are thinking about using one, please read this reader's question and my answer. It's very easy to make a mistake when preparing your own will, and ignoring instructions in the will kit isn't going to help.

"My husband and I recently did our wills through an online will kit. Do you think it's a necessary step for the witnesses to sign an Affidavit of a Witness to a Will?"

Yes, I do think it's a necessary step. Why would you choose to skip a step that the kit tells you to complete?

Assuming that you have made your will correctly and have had it witnessed correctly (two very big leaps of faith for online will kits, but that's a story for another day), then your will is valid without the Affidavit of Witness being attached. However, your will can't be probated without the Affidavit, so leaving off the Affidavit is a mistake.

When a will is sent to the court for probate, the court needs proof that the will was properly signed and witnessed. By "properly" I'm referring not just to the fact that each page was initialled and the last one was signed, but also to issues such as the person signing being of the age of majority and being of sound mind. This proof is provided by the Affidavit of Witness.

If you don't have it signed now, once you pass away your executor will have to find one of the witnesses and have it signed. This won't necessarily be easy, as witnesses may move away or lose touch with you. Or they may pass away. Why cause this kind of problem when you can prevent it by having the Affidavit signed now?

It makes me nervous that you are questioning parts of the instructions provided to you for setting up a proper will. You may be skipping over information or steps that are vitally important to a valid document. Please do not make the mistake of assuming that you don't need the Affidavit because your will won't need to be probated. You can't know that ahead of time.

My experience has been that some people mis-use will kits. They don't want to bother getting advice or paying a lawyer so they wilfully ignore potential issues and problems. Those are the people whose families pay for it later. You can produce a valid will using a will kit, but only if you have followed all of the instructions provided by the kit, including the advice about getting the Affidavit signed.

Holographic wills in BC

A holographic will is one that is hand-written (not to be confused with a printed page where you fill in the blanks). It's a less formal way of making a will, and accordingly has less formal requirements for validity. For example, in jurisdictions where holographic wills are allowed, they do not require witnesses.

Currently in British Columbia, holographic wills are not legally recognized but that may change in the future. Click here to read an article from the law firm of Clark Wilson LLP that talks about what changes may be expected with new legislation being introduced in BC.

Holographic will names only 1 of 4 kids - now what?

 Even though I try to answer only one question at a time, the reality is that most estates are not simple, and the questions overlap each other. An example of this is the note below that I received from a reader. His question is simply stated, but the answer is complicated. Here is the question:

 

"My brother died and his ex wife has stated she has a 'holographic' will which names only one of his four children as beneficiary. He has set beneficiaries for his RRSPs, pension and life insurance which include only two of his four children. There is no identified executor for his estate. Do his adult children not included in this will have any rights to his assets?"

 

There are several issues to look at here, but the main one is the validity (or otherwise) of the will. A holographic will, if properly made, is legally valid in most places in Canada. But I've always found it wise to withhold any judgment about whether any particular holographic will is valid until I've had a chance to examine it. This is because most people have no idea what it really means for a will to be "holographic" and refer to all kinds of invalid things as being holographic wills when they are no such thing legally.

 

You said that there is no executor named in the will. This means that nobody has the legal right to administer his estate. Not even the ex-wife who physically has possession of the will. When a deceased person dies without naming an executor, the court can appoint someone to act as administrator. When there is a will but no executor, which really isn't that unusual given that executors may renounce or pass away, the will is taken to the court. The judge then will appoint someone to administer the estate according to the will.

 

There is a hierarchy for who can apply. Assuming that "ex-wife" means they were divorced and not just living apart (lots of times I hear about an "ex" only to find out they are still actually married), she would not be the first in line. She or someone else in your family needs to take the will to an experienced wills and estates lawyer to find out a) if the will is valid and if so, b) who has the right to apply for probate.

 

Now, the reason I'm making such a fuss over the validity of the will is that if the will is valid, your brother's children not named in the will are probably out of luck. If the will is invalid, your brother's estate will be distributed according to the intestacy laws of your province. That usually includes all children, but that will depend on the status of any spouse and the size of the estate.

 

The general rule about adult children is that unless they are handicapped and financially dependent on the deceased, they are not entitled to anything from the estate and therefore have no grounds to contest a will just because they didn't get anything. An exception to this rule is British Columbia, where they  have the Wills Variation Act that allows children to contest a parent's estate on fairness grounds.

 

Keep in mind that since the RRSPs, pension and life insurance policy have named beneficiaries, they aren't included in the estate. They will flow directly to the named beneficiaries. Even if the will were to be contested and a different distribution set out by the court, it will only apply to the assets in the estate.

 

In this situation, you need advice from a lawyer who can look at the will itself, and who is thoroughly familiar with estate laws in your province.

 

 

Timing could be everything with wills

Recently a reader commented to me that he knew his father's will wasn't valid because his father had made the will leaving everything to his mother, but his mother had died before his father. The implication was that the father should have made a new will after her death. The reader in question was completely wrong about the effect of the timing, unfortunately, but it got me thinking about the various rules that apply to the timing of when wills are made.

Wills made by couples almost always allow for two scenarios, one scenario being that the spouse survives and the other being that the spouse does not survive. It typically can be summarized as "I leave everything to my spouse but if he/she dies before me, then everything to my children". Couples aren't the only ones who should have an alternate arrangement in the will; everyone should ask a few "what if he/she dies before me?" questions while planning their wills.

Assuming the reader's father had a will along these lines, it shouldn't matter to the validity of his will whether his wife outlived him or not. Many widowed people do choose to make new wills for many good reasons, but it isn't automatically required.

Timing also doesn't matter when it comes to the purchase of new assets (with an exception, which I'll get to in just a moment). If you make a will in 1999 in which you dispose of "all my assets", then your will covers the house you buy in 2005 and the investment account you set up in 2011. It doesn't matter that you obtain these assets after you make your will, and you don't automatically have to make a new will to deal with them.

The exception that I mentioned is any asset you buy that names a beneficiary. Usually this is a life insurance policy, but it could be an RRSP, RRIF or LIRA. With this kind of asset, the most recent designation is the one that is valid. So, say you  make that will in 1999 and you leave everything to your spouse. Then in 2005 you buy a new life insurance policy and on the policy contract itself you name your oldest son as the beneficiary. When you pass away, your will is valid, but not as far as your insurance policy. Because the beneficiary designation was made after the will, the designation holds.

If a person dies leaving more than one will behind, timing again becomes important. Only the most recent will is valid. Each new will revokes all earlier wills. This is automatic, with the exception of wills that are specifically set up to work with a second will (usually covering assets in another country, or separating personal from corporate assets).

Timing may also be an issue where a marriage is involved. In some jurisdictions, getting married automatically cancels your existing will, so you have to make a new one after you get married. In some jurisdictions, getting divorced changes (but doesn't cancel) your will, so you would likely want to make a new one after you get divorced.

As always, it's best to get one-on-one advice that is personalized to you so that you have the chance to set out all the facts that apply to you, and to ask plenty of questions.

How do I prove handwriting on a handwritten (holograph) will?

When a formal Will is probated, it is supported by a sworn affidavit of a witness who saw the deceased sign. This proves that the Will was actually signed by the right person. With a handwritten (known legally as "holograph") Will, no witnesses are required. So how do you prove that it was actually signed by the deceased and not someone else?

The key lies in the handwriting. You must prove that the handwriting on the Will is the deceased's handwriting. This isn't actually easy these days when nobody actually writes anything any more.

In Alberta, there is a set form called NC9 Affidavit of handwriting of deceased that you must use to prove the handwriting. It will be one of the documents that you submit to the court in your application for probate. Because it's an affidavit, the information in it must be sworn by you, or whoever the person is that knows the deceased's handwriting, in front of a Commissioner for Oaths so that it becomes evidence that the court can use. There are similar forms in other provinces.

In the NC9 affidavit, you will explain how you knew the deceased and for how long you knew him or her before his/her death. You will say how you are familiar with his/her handwriting. For example, you might have written letters to each other, or you might have exchanged written recipes.

If you're having trouble finding samples of the deceased's handwriting or signature, get creative. Where would he or she have written something down? Did he or she have a bank account where he/she gave a sample signature? Can you find out about letters or cards he or she might have written to someone else? Did he/she sign things at work (invoices, letters, work orders) that you could use to compare?

If the holograph Will does have a witness, that is the best evidence of all, though it is rarely available.

My Will is 25 years old. Is it still ok?

Those of you who have come to hear me speak at various venues know that a lot of the questions I raise on this blog are questions I've been asked at seminars. This is another one of those questions I've been asked recently, but it's also something I've been asked frequently over the years.

If your Will is 25 years old, is it still ok?

The answer depends on what you mean by "ok". If you are asking whether it's still valid, then yes, it's ok. Wills don't expire. Assuming that it was signed and witnessed properly in the first place, then it's still valid now.

If, on the other hand, you're asking whether the contents of the Will are still appropriate for your present circumstances, that's another matter. Here are some of the issues with older Wills:

- The law is constantly evolving. The government makes new laws (particularly tax laws) that may make your old estate plan less effective. Another law that's changed is the one that allows the Affidavit of a Witness to be made at the same time as the Will. 25 years ago, you couldn't attach that until the testator had died. This means you now have to look for one of the two people who witnessed your Will 25 years ago and hope that he or she still has mental capacity to sign the Affidavit. A new Will would bring your ideas and plans up to date.

- Lawyers learn from ongoing court cases about what to put into Wills and to leave out of Wills. This is especially true for the "powers" that are included in Wills to allow executors and trustees to carry out their instructions in the Will. There has been a lot of litigation over the last 25 years, and present-day lawyers know how to comply with those cases to help bulletproof your Will.

- As your documents were prepared before we were legally able to make Enduring Powers of Attorney and Personal Directives, you may not have had the chance to have those documents prepared. They are essential.

- Your circumstances may have changed. Most likely, in the last 25 years there has been at least one significant change in your personal and/or financial life. For example, you may have retired, gotten divorced, seen your children move away, had grandchildren, been widowed or sold your business. No doubt your financial status is different than it was back then.

It's a good idea to have a Will of this vintage reviewed by an experienced Wills and Estates lawyer. Wouldn't you rather find out now that your documents are deficient than to pass away and leave the problems for your spouse or kids to fix? Not every review results in a new Will being made, but the chances are very good that a Will that is 25 years old will need to be brought up to date.

Oh and by the way, even though your lawyer charged you $25 back then to make your Will, he or she isn't going to charge that price these days!

How do they know I followed the rules?

You may already know that when you make a Will, there are rules to follow about signing and witnessing. In almost all jurisdictions, the person signing the Will (the testator) has to sign in front of two witnesses. The witnesses each have to sign in front of the testator and each other. The witnesses can't be anyone who will inherit anything under the Will.

There are also more fundamental concepts that affect individual Wills. For example, a person making a Will must be of legal age, and must have mental capacity to understand what he or she is doing, and the consequences of his or her actions.

When lawyers prepare Wills for clients, we make sure that all of the rules and guidelines are followed so that the Wills will be valid.

So when a Will is probated, or needs to be used for other legal purposes, how does anyone know whether those rules were followed? After all, at the time the Will is needed, many years might have passed. The testator will no longer be around to confirm that all was done properly. And the witness might have moved away or died or can't remember the Will or simply can't be found.

There must be evidence that the Will was properly signed and witnessed. This evidence is given in a document called the Affidavit of Witness to Will. It's made at the time the Will is signed (ideally) but can also be made later if necessary. The Affidavit of Witness is attached to the original Will, which is marked as Exhibit A to the Affidavit. Those documents should be kept together always.

The Affidavit must be signed by one of the witnesses and sworn in front of a Commissioner for Oaths. In Alberta, only one of the witnesses must sign one of these.

The Affidavit describes how the rules were followed, such as revealing on what date the Will was signed, who was there, whether the witness believes the testator has mental capacity, and that the testator is of legal age to sign documents.

If you have a Will that does not have an Affidavit of Witness attached, this does NOT mean that your Will is necessarily invalid. All it means is that you need get one of these Affidavits prepared. Not all lawyers attach them automatically, though that is considered the best way to do things. If you Will is quite old, it might have been done before the Rules of Court were changed to allow you to get the Affidavit immediately (in the old days, the testator had to die first before the Affidavit could be sworn). Your Will cannot be probated without the Affidavit in Alberta and some other jurisdictions.

When my spouse dies, is my Will still valid?

Twice in the last week, at different seminars, people in my audience said they knew their Will became invalid as soon as their spouse died. What was interesting to me was that each of these people stated this as fact, rather than asking me a question. This leads me to believe that the idea is pretty widespread.

To be more clear, each of these individuals said that if a husband and wife both make Wills, and the husband dies, the wife no longer has a valid Will.

This is completely untrue.

If a Will is properly made, it will anticipate three scenarios, those being:
- the husband dies before the wife
- the wife dies before the husband, and
- they die in a common accident

Quite often when someone is widowed, he or she is advised by their lawyers or accountants to get a new Will. This is not because the Will is invalid. It's because there has been a major change in the widowed person's life and it's a good time to re-think the estate plan. It's a good time to update the naming of an executor.

Also, when a person is widowed, his or her financial picture may change. For example, the person who died may have named the widowed person as a beneficiary in a life insurance policy, RRSP, RRIF, or pension plan, so those funds will be transferred into the widowed person's name. If they owned their home as joint tenants, that property will also transfer into the name of the widowed person by right of survivorship. In other words, it's a good time to sit down with an estate planning lawyer or financial advisor and talk about how financial arrangements might need to be updated.