People are hesitant to prepare their Will for a variety of reasons. Most feel that the process is stressful and unnecessary. The reality is that the majority of people who take the time to prepare their Will feel a great sense of relief and contentment after the process is complete. In terms of being necessary….well, we all know that death and taxes are the only guarantees in this world!
Before you begin the process of having a Will prepared, it is helpful to understand the terminology that is used. The Testator is the person who has made the Will. A Beneficiary is a person who is designated to receive a portion of the Testator’s estate according to the Will. The Executor is the person named by the Testator to carry out the provisions in the Will.
There are a number of misconceptions about the formalities necessary in order for a Will to be valid. There are also misconceptions concerning the capabilities of a Will. Here are a few examples:
(1) A beneficiary named in my Will can also witness my Will. This is incorrect. In order for a Will to be valid in Nova Scotia, it must be signed by two or more witnesses present at the same time as the testator. However, if you are a witness to the Will, and you also receive a gift as a beneficiary under the Will, the gift is invalid.
(2) Once I have prepared my Will, and have decided who I want to leave my property to, I need to hold onto that property. Again, the answer is no. A Will is revocable by nature, meaning that even if you do prepare a Will, you can revoke it whenever you like. Furthermore, your Will is effective only upon your death, and it is only the property that you own at the time of your death which comprises your estate. This means that your Will is of absolutely no consequence on how you wish to deal with your property throughout your lifetime.
(3) If I want to make changes to my Will I can simply cross out the items I want to change and hand- write in the new provision. Unfortunately this doesn’t work. If the court can read the items you scratched out they will follow those instructions and ignore your hand- written changes. The logic is that anyone could make those changes to your Will. So this is to protect you in case someone tampers with your Will after you sign it.
(4) If I don’t have a Will my parents can take our children. If you do not make provisions for guardianship of your children in your Will by appointing someone, the courts will decide who gets your children based on what the judge feels is in the best interests of the children. Is it in the best interests of infant children to be raised by their 70 year old grandparents, or by your 35 year old brother and his wife whom you hate? The judge doesn’t know how you feel about an individual or what your goals are for your children. If you choose the guardian you can pick someone who would parent your children the way you would want them parented. If you don’t leave instructions, the court will decide.
The good news is making a Will is relatively inexpensive and most lawyers will help you include instructions for several different scenarios to make your Will durable and adaptable to changes throughout your life, hence decreasing the amount of revisions you may need in the future.
At Kennedy Schofield Lawyers we can assist you with all of your estate planning needs, call us today to book your appointment.