Do You Have a Last Will and Testament?

Reid Dickie

Recently I made changes to my last will and testament which required two people to witness the signing of the new document. I asked my neighbour and her partner to witness for me. I was surprised to learn that neither of these professional people, both approaching retirement within a decade, have written their will. Though neither have children, both own property and have assets. It got me wondering how many other people are intestate – without a will.

Despite the morbidity of the idea of a will and the introspective considerations creating a will requires, the process is well worth it. Wills don’t have to be complicated tracts that require expensive lawyers and reams of paperwork. I do recommend getting legal advice if your estate is large or complex, if you are separated or considering divorce, contemplating marriage or elderly and subject to undue influence from potential beneficiaries.

Otherwise making a will is easy. Go to Staples (UPDATE: As of 2013 Staples no longer carries the Self-Counsel products but I still found it at McNally-Robinson Bookstore in Winnipeg, $16), find the Self-Counsel Press display of legal and business forms and buy a $9 will kit. The kit has two blank last will and testaments and two blank living wills, all of which are legal everywhere in Canada except Quebec, and instructions on filling them out.

Decide on your executor (male) or executrix (female) and ask them if they are willing to fill the role for you. Handwrite your instructions clearly with dollar amounts in both numerals and written out in words. Be sure to include what powers over your estate you are giving your executor/trix such as power of dispute resolution, power to employ agents, power of sale and realization, etc. Appoint a guardian for your children if they are minors. You can state your wishes about having a funeral or not and any other considerations you have about events after your death. (Funeral or no funeral should be something your family already knows.) Have the will signing witnessed by two people who are not beneficiaries, store a copy in a safe place and give a sealed confidential copy to your executor/trix. Now you are testate, your final testament to the world has been made known. Die smiling.

What if you die intestate? Try not to do this; it just complicates everything for everyone. Though it varies from province to province, basically, without a valid will, your estate will be divided according to the estate property laws of your province. If you have no will and no living family members, your entire estate goes to the provincial government. If you die without a will but leaving relatives, the law will apportion your assets among your immediate family. An estate administrator to act as your executor/trix will be appointed, your family members and their portions of your estate will be determined and the age at which minors become beneficiaries will be set. In Manitoba, the spouse of the intestate is awarded $50,000, if the estate has that amount in it. This amount differs from province to province. The rest of your estate will be distributed to children and other eligible family members. Please remember that each province defines “spouse” and “family” differently.

While you are at it, make a living will, sometimes called a health care directive, as well. A living will differs greatly from a last will and testament in that it has no legal surety and only expresses your wishes. Should you become incapacitated, incompetent and/or unable to make decisions for yourself, a living will suggests heavily what you would like to happen but doesn’t necessarily guarantee it. Six provinces – British Columbia, Manitoba, Newfoundland, Nova Scotia, Ontario, and Quebec – have living will laws. Here’s how Manitoba’s is stated: “The wishes you express in your directive are binding on your friends, relatives and health care professionals (unless they are not consistent with accepted health care practices) and will be honoured by the courts. However, health care professionals treating you are not obliged to search for or ask about a signed directive. It is important to be sure that family, friends, your doctor and your proxy know you have a directive and know where it can be found.” The part in brackets is the bugaboo.

For a living will to be effective, even with supportive provincial laws, the onus is on you to make sure you have fully discussed your wishes with your family, friends and medical professionals. Give copies to the relevant people, listing their names on the bottom of the original. Keep the original living will readily available. Don’t keep your living will with your last will and testament. They serve different purposes and are relevant at different times in your living and dying. It’s an excellent idea to reread your living will once a year. Initial and date any changes you make to the original, distribute new copies to your principals.

By having wills that express your pre- and post-death desires, you are doing yourself and your family a big favour. Illness, accidents, old age and death strain our coping abilities so the more clarity and help you give your providers when the inevitable occurs, the better everyone will feel and cope. Bonus! You’ll be remembered with even more fondness!

Small but complete aside: I looked up the suffix trix which indicates a female doing something specific, like aviatrix or executrix. I posit it’s the root of the name Trixie. And that’s my theory and it’s mine.

Check out my post on obituary euphemisms.

2 Comments

Filed under Life and Life Only

2 responses to “Do You Have a Last Will and Testament?

  1. Good info. In Alberta, we use the term Personal Directive in place of Living Will, but as I understand things, they’re essentially the same. Source: http://www.legalaid.ab.ca/help/FAQs/Pages/willsandestates.aspx#livingwills
    Thanks for this post

  2. Really like this post, and your site generally. Abandoned buildings, so interesting, and dare one say, apropos wills. 🙂 I am located in Sioux Lookout and do wills for folks in both Ontario and Manitoba: http://simplywills.ca

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