Wills

Writing a Will is easy, inexpensive, and important. Despite this, over 50% of Canadians do not have a Will. 

By reading this, you’ve already taken the first step to ensuring that your estate Will be handled according to your wishes. Knowledge is power - we want to empower you by giving you an overview of Wills. We’ll cover what Wills are, why you should have a Will, the different types of Wills that are available, and the best way to start writing a Will. 

The information contained within this guide is relevant in the province of Manitoba - if you live in another jurisdiction, some of the information here may not apply to you.

What is a Will?

In the simplest terms, a Will is a legal document that expresses how the property of a person is to be distributed after their death. The term property includes real estate, personal property, and other assets (including money).

A Will should include the name(s) of your executor(s). An executor is a person who is charged with managing your estate after you pass, in accordance with the wishes set out in your Will. 

It’s important to update your Will regularly, as financial and personal circumstances change. You should also take care to let the person(s) you’ve named as executor(s) know where they can find your Will.

Why you should have a Will

Wills are legally binding documents. They ensure that your wishes will be followed after you pass away. They dictate how your assets will be distributed, but they can do much more, like name guardians for your children and give instructions as to how you want your Winnipeg funeral to be arranged.

Perhaps most importantly, Wills give your friends and family peace of mind. When a loved one passes away, grief can set in quickly. Grief can make decision-making almost impossible. A Will absolves friends and family of the responsibility to guess what you would have wanted. A good Will is a gesture of love. 

Types of Wills

There are several different types of Wills, each of which have a place in estate planning:

Testamentary Will

The testamentary Will, sometimes known as a formal Will, is the form of Will most people are familiar with. A testamentary Will is:

-In writing

-Signed by the testator (the person making the Will) or by someone else in the testator’s presence and     directed to sign by the testator

-Witnessed and signed (in the presence of the testator) by two people. Those two people must witness    the signing of the Will by the testator (or by the person designated by the testator).

The people who witness the Will and the person who is directed to sign the Will by the testator (if applicable) cannot be beneficiaries of the Will - their spouses or common-law spouses cannot be beneficiaries either.

This is, in many ways, the most useful form of Will. The strict regulations regarding witnessing make a formal Will almost impossible to forge. Unlike holographic Wills (which we’ll discuss next), a formal Will does not have to be handwritten. This means a lawyer can draft a formal Will for their clients, making formal Wills an excellent choice for more complex estates.

Holographic Will

A holographic Will is one written entirely in the testator’s handwriting, and signed by the testator. For a holographic Will to be considered valid, it must contain provisions explaining how a person’s estate is to be distributed.

For a holographic Will to be probated (the process in which a Will is deemed legally valid), two people who are not beneficiaries of the Will, and who knew the testator for a number of years (including at the time when the Will was written) must confirm that the Will is indeed in the testator’s handwriting, and that they knew the testator to be of sound mind when the Will was written.

Holographic Wills do not need to be witnessed at the time of signing - they are, in effect, a Will written and witnessed by only one party (the testator). It is recommended that you consult a lawyer even if you plan on writing a holographic Will - we’ll discuss this more in the “How to get started” section of this guide.

Oral Will

Oral Wills and video Wills are not legally valid in Manitoba. We’re including them in this guide, in part, as a warning - in Manitoba, only written Wills can pass probate and be considered legally binding.

You may, nonetheless, create an oral or video Will. While these Wills are not legally binding, they can be a useful way of expressing your wishes to friends and family. We strongly recommend creating a written Will to accompany your oral or video Will, so as to ensure that you have a legally binding Will.

Mutual Will

A mutual Will is a type of written Will that is created in tandem with a spouse. In simple terms, mutual Wills carry stipulations that affect how a spouse can change their Will after the death of the testator. These Wills are used in order to ensure that beneficiaries will not be changed, so that part of the estate of the testator will be passed on to the beneficiaries they choose after both they and their spouse pass away.

Mutual Wills are, however, a legal grey area - there is not a lot of established case law surrounding mutual Wills. For this reason, we strongly recommend consulting a lawyer before considering a mutual Will. Other vehicles, such as trusts, can be used in place of mutual Wills. 

Pour-over Will

A pour-over Will is a type of written Will in which some (or all) of the estate is moved into a trust. For a number of reasons, pour-over Wills are often declared invalid by courts. Before considering a pour-over Will, consult with your legal team.

How to get started

There are a number of ways to start writing a Will. You can purchase a DIY kit, use an online Will service, or hire a lawyer. You can also simply create a holographic Will and follow this guide to Wills created by the Government of Manitoba. 

The more complicated your Will is, the more important it is to hire a lawyer. Online software can help you write a Will of some complexity, but if you have a blended family, trusts, complex estate distribution needs, and/or complex finances, hiring a lawyer is often the best way to go.

You should start on your Will right away - anyone above the age of 18 should have a Will if they care how their estate is going to be distributed. The cost for writing a Will can be quite low - the cost for not having a Will can be quite high.

We hope this guide empowers you to make the best decisions about your Will and your estate.

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