Who Needs A Will Anyway?

Why you should make a Will, and hire a lawyer to help you

What is a Will?

A "Last Will and Testament" or "Will" is a written document that sets out who you want to administer your estate, and the people (or organizations) that you want to receive your property after you die.

A person's 'estate' refers to all of the property that they owned at the time of their death (including real estate, personal items, vehicles, bank accounts, investments, etc.). Anyone entitled to benefit from someone else's estate is called a 'beneficiary'. 'Testamentary' refers to anything related to Wills (for example, a person's instructions to prepare a Will could be called their 'testamentary wishes'). A person who makes a Will is called a 'testator', whereas someone who does not have a Will is said to be 'intestate'.

The Wills Act sets out the requirements of a valid Will but generally speaking, for a Will to be valid in Manitoba, it must:

• be a written document that sets out a distribution of the Will-maker's property to take effect after the Will-maker's death;
• be signed by the Will-maker (or by another person on behalf of the Will-maker, in the presence and at the direction of the Will-maker) at the end or bottom of the Will; and
• be signed by two or more witnesses who were both present simultaneously and witnessed the Will-maker sign the Will. Witnesses must be mentally capable adults and should not be someone who is receiving property under the Will nor the spouse or common-law partner of someone who is receiving property under the Will.

What happens if someone dies without a Will?

The administration of the estate of a person who died without a Will is often more complicated than the administration of an estate for which there is a Will.

If a Manitoba resident dies without having a valid Will, a piece of legislation called The Intestate Succession Act governs the administration of their estate.

The Intestate Succession Act sets out who is considered the deceased's closest living family for the purposes of determining who can apply to administer the estate, who is entitled to receive a share of the estate, and the proportions of the estate to which each family member is entitled. Generally, priority under The Intestate Succession Act goes to the deceased's:

1. spouse or common-law partner;
2. children (biologically related to or legally adopted by the deceased);
3. parents;
4. siblings;
5. nieces and nephews;
6. grandparents;
7. descendants of grandparents (i.e. aunts, uncles, cousins);
8. great-grandparents; and
9. descendants of great-grandparents (i.e. great aunts, great uncles, second cousins).

If there are no living descendants of the deceased's great-grandparents nor any closer living relatives, the estate property will be paid to the Government of Canada.

If the deceased had a simple family situation (i.e. throughout their lifetime they only had one spouse, and all children of the deceased are also children of their surviving spouse) then the surviving spouse would be entitled to apply to administer and receive the entire estate. If there were any assets that did not flow to the surviving spouse by operation of law (i.e. if there are any assets solely in the name of the deceased without any designated beneficiaries), then the spouse would need to apply to a court to confirm their authority over the estate, in order to administer those assets. If the deceased had a Will, it might be possible for the spouse to administer the estate without applying to court, depending on the assets of the estate.

The application of the Intestate Succession Act can become rather complex if the deceased had an unusual family situation (for example, if the deceased left behind both a surviving spouse and a surviving common-law partner; if the deceased was in the process of separating from their spouse or common-law partner at the time of death; or if the deceased had children with multiple people).

For a person with no close family, the Act might result in their entire estate being paid to a distant relative they have never met before – or worse, to the Government.

For these reasons, most people are better served by preparing a Will that clearly sets out their wishes, rather than leaving the administration and distribution of their estate up to the law. Furthermore, the law is subject to change, so even if The Intestate Succession Act currently reflects your intentions, it is prudent to commit your testamentary wishes in a Will in case the legislation is changed or replaced by the time of your death.

What if I make my own Will, without a lawyer's help?

There are many online services offering do-it-yourself "Will kits" for purchase. Potential Will-makers might be tempted by the lower cost of purchasing a "Will kit" as compared to hiring a professional to prepare their Will; however, extreme caution should be employed by anyone preparing a Will without professional guidance.

A Will is a legally binding plan for what will likely be the biggest asset transfer of your entire life and one which will take effect only when you have died and are unable to change your plan or clarify your intentions.

If you prepare a legally binding Will which contains instructions that do not make sense, the person who administers your estate will have no choice but to either (a) follow the terms of your Will even though a different approach would be better for your estate or the people you want to benefit, or (b) apply to a court for guidance and advice, or to vary the terms of the Will, at the cost of your estate. A court application of this kind would be far more expensive than the cost of having a proper Will prepared by a professional in the first place.

There are many legal considerations that should be taken into account when preparing a Will, the majority of which may not be apparent to a non-lawyer attempting to prepare their own Will, such as...

• assessing and satisfying legal obligations to provide for your spouse, common-law partner, and any dependents (i.e. children and other family members who are financially dependent on you);
• matters relating to jurisdiction, such as: the location of estate assets; potential tax implications of foreign beneficiaries or executors; determining which jurisdiction's laws will govern the Will and estate; and
• determining whether any trusts should be included in the Will to protect young or vulnerable beneficiaries (for example, beneficiaries with disabilities or addictions that prevent them from managing their money in their own best interests), and the terms of each such trust;

among other potential issues. A person who makes their own Will without legal advice risks overlooking any number of crucial legal issues, potentially creating either an invalid and unenforceable Will or a legally binding Will that is difficult or impossible to follow in the way the Will-maker intended.

What problems might arise if someone makes or alters their own Will?

Significant problems may arise when individuals attempt to make or alter their own Will without proper legal advice and assistance. The following are a few examples of issues we have encountered:

• The Will-maker prepared and printed his own Will, and asked his son and daughter to witness him signing it. The Will put the son in charge of the estate and left the entirety of the estate to the son and daughter (although the Will did not specify whether they were to benefit equally or unequally).
  
  When the son tried to file the Will with the Manitoba Court of King's Bench to obtain a Grant of Probate, the Court refused to accept it. Because the son and daughter had signed the Will as witnesses, the gifts to them (which in this case equated to the entirety of the estate) were invalidated. This then brought into question whether the document could be considered a true "Will" at all.
  
  The son came to us for assistance, and we were able to help him resolve this issue. Thankfully, the terms of this particular Will were in line with The Intestate Succession Act, and the Will-maker's estate could be delivered to his children as he intended, by virtue of the intestacy legislation. The self-made, invalid Will, however, was worse for the estate than having no Will at all, as it was ultimately not relied upon and only created delays and confusion for the family, resulting in added costs. If in this case, the property distribution in the Will had not mirrored the one set out in The Intestate Succession Act, the problem would have been significantly worse, and the estate would have likely had to incur substantial legal costs in seeking advice from the Courts about how to interpret and carry out the terms of the Will.

• In another case, the Will-maker, who was the majority owner of corporate shares in a family business, had hired a lawyer to help him make a formal legal Will. The issue arose when he later attempted to make changes to the Will on his own, without a lawyer's help.
  
  In the Will drafted by the lawyer, the corporate shares were originally divided equally between the Will-maker's two children (50% and 50%). Sometime after the Will was signed, the older child became more involved in the business, and the Will-maker decided that the child should receive a greater amount of the corporate shares than the younger child. The Will-maker took his original Will and struck out the percentages to change them to 70% and 30%. He initiated next to the changes but did not date them, nor did he have the changes signed by any witnesses.
  
  After his death, his family was surprised and disappointed to learn that the hand-made alterations to the Will were unenforceable, and the only way to give effect to the changes would be by making an application to the Court to validate them. After considering the costs of a court application, and the lack of evidence to prove that the Will-maker was the one who made the changes to the Will, the family decided to follow the original terms of the Will as drafted by the lawyer – an unfortunate result for the child who was meant to receive 70% of the shares, and for the Will-maker, who surely died believing that his wishes would be honoured.
  
  Fortunately, in this case, the Will-maker's children got along well and were able to reach an agreement about the corporate shares and who should obtain control of the family business. If either child had taken a more adversarial approach, it could have resulted in a costly and time-consuming legal battle.

Is it worth it to hire a lawyer to prepare a Will?

As discussed above, it can be considerably more costly in the long term if a person dies without a Will, or worse, with an ill-prepared Will. We encourage you to consider the initial expense of developing a proper estate plan as an investment in the smooth and cost-efficient administration of your estate.

It is crucially important that you consult with a lawyer before making a Will if you...

• have been in multiple marriages or common-law relationships;
• have had children with more than one person;
• are part of a blended family;
• have family members or loved ones with disabilities who will need help managing their inheritances;
• have family members or loved ones with addictions who may be endangered by receiving their inheritances outright;
• have complicated family relationships or estranged family members whom you absolutely do not want to receive any part of your estate; or
• have an interest in a business (such as a corporation or partnership).

Even if none of those situations apply to you, a professional estate planning lawyer can help you by:

• identifying potential issues with your estate plan, and suggesting solutions to give effect to your wishes;
• preparing your Will in accordance with Manitoba's legal requirements, to ensure your Will is valid and enforceable; and
• identifying other estate planning documents that might be of benefit to you, such as a Power of Attorney (to allow someone else to assist you in managing your financial, legal, or business affairs) or a Health Care Directive (to allow someone else to make medical decisions for you if you are incapable of doing so yourself).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.