One of the easiest methods individuals have for protecting their families and beneficiaries after passing away is to write a will. When a person creates a will, they can express their final wishes regarding how they would like their property and other assets divided after they die.
However, with the advent of many do-it-yourself will kits, many people run the risk of creating a will that may later be ruled invalid by the court. Additionally, wills created by will and estate lawyers may be ruled invalid by a court as they lack the essential elements required by Canadian law.
If you wish to create a will or simply need more information regarding wills, contact our law firm and ask to schedule a consultation to learn more.
Why is it Important to Make a Will?
There are many reasons why an individual, referred to as a testator, should create a will. For starters, a will provides the name of who will be the Executor of the estate. An Executor is a person who will be responsible for managing the affairs of the estate, such as paying all debts, finding beneficiaries, and distributing assets.
A will also names beneficiaries, lists assets, and outlines any other of the testator’s final wishes. A will also gives the testator peace of mind their beneficiaries will receive their assets as intended.
However, if an individual dies without creating a will, they are said to be the intestate, and their estate enters into what is known as intestacy. When this occurs, the court will become involved and name a personal representative to manage the estate’s affairs.
What Information Should Always Be Included in a Will?
When an individual decides to write a will, several essential elements must be included:
- The testator’s name, address, and the date the will was signed.
- A will should state that it is a “last will” and takes the place of any the testator may have created beforehand.
- The name of the Executor and their right to manage the estate.
- How the estate’s assets should be distributed, such as real property, jewelry, homes, cash, and investments.
- Name a guardian for minor-age children.
Many individuals question why they should name a guardian for their children as they assume the other parent would still retain custody. However, it is critical to name a legal guardian should an individual and their spouse both die simultaneously.
When Can a Will Be Contested?
Any family member or other individual can contest a will if they have reason to believe it is invalid or unlawful. Contesting a will can be a complex process, but when this occurs, legal arguments are made before the court stating why the document should be ruled invalid.
Some of the most common factors that lead to a will being contested include:
- Lack of mental capacity: It is believed that the testator lacked the mental capacity to make crucial decisions based on illness, disability, or mental health concerns.
- Undue influence: It is believed the testator was pressured to change their will. Undue influence is often alleged in cases where the elderly or those with cognitive impairment have changed their will.
- A family member was left out of the will: In many instances, a family member may choose to contest a will if they feel they were omitted as a result of undue influence on the part of another.
- Forgery: It is believed the will that has been presented is forgery and not created by the decedent.
- The will lacks essential information, such as no signature, issues with the witnesses who signed the will, or ambiguous language open to interpretation.
Why is it Essential to Hire a Lawyer to Help Write a Will?
A will is meant to help the testator have peace of mind knowing their last wishes will be honored and beneficiaries will be cared for after passing. For this reason, many individuals opt to create a will through a DIY kit.
However, suppose the testator has a great deal of property and assets or has children from previous marriages. In that case, hiring an experienced lawyer to write a will is always best.
One of the last things anyone ever wants to worry about is whether their family will be provided for after their death. With the help of a knowledgeable lawyer, you can create a will that holds up to legal scrutiny.