A Will is a legal document that details, among other things who will inherit your assets. There are several different types of Wills, which can all be Probated when the testator dies, but some types are more problematic than others. The following are some of the most common types of Wills.
A formal Will is the type of Will a lawyer would prepare for you, although it is possible to prepare a formal Will without a lawyer. This type of Will is typewritten, signed by the testator in the presence of two witnesses and signed by the two witnesses at the same time. If signed with the assistance of a lawyer, this is all arranged for you. These witnesses should not also be listed as beneficiaries of the Estate, or the spouses of any of the beneficiaries. Unfortunately when these Wills are prepared without the assistance of a lawyer, sometimes beneficiaries are asked to witness Wills and either the gifts fail completely, or an expensive Court application is required to allow the gifts to those beneficiaries. A testator who prepares his or her own formal Will without proper legal advice often encounters similar difficulties as those who use a Will kit or Holograph format.
Stationers Will or Will kit
Will kits can be found at registries, stationary stores, in books about Wills or on various websites. Although not advised, a simple Will can be completed without a lawyer by filling out a form which has a number of blank areas to write in your choice of Executor, Guardian and Beneficiaries. This type of Will is one of the most problematic types of Will at the time of Probate. A Will kit Will usually fails to cover the “what if” scenarios such as if your main beneficiary dies at the same time as you or your Executor or guardian is no longer capable of performing the tasks because they have either died or have lost mental capacity. The Will kit may have been generated in a different jurisdiction and may not properly apply to the laws in your jurisdiction. Also it can be confusing to try to figure out what information should be included in what blank without guidance.
A holograph Will is the one that is 100% in the handwriting of the testator. The main requirements of a holograph Will are that it must be entirely handwritten by the testator, and it must be signed and dated. In simple words, this informal Will is not made by the Will lawyer and does not have to be witnessed. These Wills are often problematic. The testator often forgets to include important information in these Wills such as failing to name an Executor, Trustee, or Guardian. Often the gifts to the beneficiaries are written unclearly or are much more complex than they should be. Also the testator usually forgets to cover those “what if” scenarios. Often this type of Will results in expensive Court applications to interpret them. Another difficulty is that after the testator dies, the Executor has to find someone who is not a beneficiary to identify the handwriting of the deceased person.
A joint Will is a single Will that two people prepare together where each one leaves all of their assets and property to the other and then to an agreed upon list of beneficiaries when the second of them dies. After one of the testators dies, the surviving co-testator cannot change the Will. Today, these Wills are rarely prepared in Canada as the legal and practical difficulties resulting from this type of Will are too significant.
If the testator is in the Canadian Armed Forces or is a mariner, the testator can write a Will his or her self. This type of Will needs to be signed and dated but does not need witnesses. It may be formal or holographic. A soldier or mariner can write their military Will even after the person is no longer in the service or on duty. This can result in similar difficulties as with a Holograph Will.