The Last Will & Testament (Form and Substance)
Most people know that a Will allows one’s property to pass to one’s beneficiaries in accordance with one’s wishes, absent which, Ontario legislation dictates the disposition of one’s estate. Wills also allow one to decide other important matters such as the guardian for one’s minor children. The importance of executing a Last Will and Testament is therefore indisputable and cannot be overstated. Despite the basic known truths regarding the importance and purpose of a Will, there remain many misconceptions and mostly respecting formal requirements.A Will does not need to be in a specific format. The only requirement is that it be transcribed into written form. It is accordingly true that a Will may even be handwritten. Handwritten Wills are legally known as Holograph Wills which are entirely in handwritten format and thereafter signed by the author or testator and dated. Holograph Wills may become the subject of considerable scrutiny due to their lack of formality and vulnerability to forgery or other form of tampering, and for such reasons, amongst others, are not an advisable estate planning tool.
In light of the foregoing, it stands to reason that while the substance of one’s Will is more important than the form itself, proper form is imperative in order to insure that the estate plan devised may be carried out without fail, controversy, or unnecessary estate administrative or litigation expense. The desirable form is the Attested Will which requires that the written document be signed by the testator and witnessed by two (2) individuals at the same time who are neither beneficiaries under the Will nor spouses of any beneficiary named in the Will.
Substantively, a Will should also follow some basic principals lest it fail to pass as a valid Last Testamentary document. For example, a Will that does not revoke any prior executed Wills by the testator leaves open the possibility that two (2) conflicting Wills be administered on behalf of the estate. A Will must also provide for the naming of an executor, for the naming of trustees of any specific trusts under the Will as opposed to outright bequests, and for the naming of beneficiaries and the corresponding property to be given to each of them. Alternate distributions of estate property should also be contemplated and therefore alternate beneficiaries as well. A Will should no doubt be prepared by a lawyer or at the very least reviewed by a lawyer to safeguard against the many potential pitfalls of self made estate planning documents.