How to Make a Last Will in Newfoundland and Labrador

Q: What is a Will?

Wills, or “Last Wills and Testaments”, in Canadian common law legal systems, are part of a legal tradition which is easily a thousand years old. In the context of estates, the noun, “Will”, has its origins in the Old English word, wylla, or in the verb form wyllan, which means to “want” or “intend”. As a consequence, the common law of Wills is an area of law which is very old, although much of it has been codified and clarified by modern legislation. In Newfoundland and Labrador, the primary legislation governing the creation of Wills is the Wills Act, RSNL 1990, c W-10 (the “Act”). Interestingly, the Act doesn’t actually define the term. That said, the definition for our purposes is fairly simple: A Will is a legal instrument that expresses a person’s intentions for the transfer and distribution of their property and assets after their death, and a person to manage their property for the purpose of carrying out those wishes.

Q: What are the basic requirements?

Subsection 2(1) of the Act states that:

“A will is invalid unless it is made in writing, and it is either in the handwriting of the testator, and signed by the testator, or, where not so written and signed, is signed by the testator in the presence of at least 2 witnesses, who shall, in the presence of the testator, sign the will as witnesses, and where the will is made by a person who cannot write, it must first be read over to or by the testator in the presence of the witnesses.”

That is, the basic requirements for formal validity are:

1. The Will should be in writing;
2. It has to be signed by the testator (i.e. the person who is making it);
3. It has to be signed by two witnesses, at the same time as the testator.

The exception to needing two witnesses is where a will is entirely written in the testator’s own handwriting (this is called a “holograph will”), in which case only one witness is required.

In addition to these requirements, a person has to be at least seventeen years of age in order to make a Will (section 3).

Q: Do I need witnesses?

At the risk of being redundant, having a will a properly witnessed is critically important. The witnesses need to be in the room with the testator when they sign it, and all at the same time. That is, the testator can’t write their will and sign it, and then have one or both witnesses sign it later. A will signed in this fashion is not legally valid.

It is also important to choose the right witnesses.  It is important that the witnesses be mentally competent adults. It is best if one or both of the witnesses are somewhat younger than the testator and in good health, in case they are called upon after the testator passes away to testify that they saw the Will being signed in order to prove it for a probate judge. It is also best if the witnesses are not people who stand to benefit from the gifts made in the Will (i.e. they should not be beneficiaries or spouses or children of beneficiaries).

A good way to make it clear that a Will was properly witnessed is to mark the place and the date where the Will was signed next to the three signatures. For example:

“SIGNED at the City of Corner Brook, in the Province of Newfoundland and Labrador, Canada, on this 10th day of February, Two Thousand and Twenty-four, by the said Testator, John Smith, as and for his Last Will and Testament, in the presence of us both present at the same time, who at his request and in his presence, and in the presence of each other have here subscribed our names as witnesses: (Signature, Signature, Signature).”

This type of language makes it very clear when the Will was signed, where it was signed, and who signed it.

It goes without saying that people with hard-to-read signatures should print their names under their signature, so they are easier to identify twenty years later when some poor executor (or estate lawyer) is trying to decipher the Will.

One of the most common mistakes people make when trying to make their own Wills, or when they have some well-meaning friend help them make a Will, is to have them witnesses incorrectly.

Q: What goes in a Will?

This is where things get to be more difficult. Some people may need only very simple Wills. And some people may need very complex Wills. Or something in between.

A Will absolutely needs a few basic things:

1. To clearly identify the testator;
2. To identify that is it, in fact, meant to be a Last Will;
3. To identify an executor, or two;
4. To identify the intended beneficiaries;
5. To identify what is being given to the beneficiaries.

The best-written Wills are very clear and unambiguous in their intentions, and also consider what might happen in different future scenarios (e.g. you might plan to leave everything you have to your two children, John and Jane, but what if something were to happen to one of them? What then?)

The more complex your personal or financial circumstances are, or the more potential contingency scenarios you want to plan for, the more likely it is that you will need professional help to make sure that your Will is written in a way that ensure it does what you want it to do.

Q: Do I need a Will?

A lawyer will always say that everyone should have a Will. But an honest lawyer will say that some people need Wills more than others. If you have very little property to speak of and have no dependents (e.g. you’re a 19-year-old with no spouse, no children, a student loan, and an impressive collection of textbooks), then it’s not mission-critical that you have a Will just yet. If that’s you, then put your money on your loan payments. But, for example, if any one of the following apply to you:

1. You have dependents (a spouse, children, etc);
2. You have a common law spouse;
3. You have step-children, or a blended family;
4. You intend for specific assets to go to specific people;
5. You have disabled family members that you want to leave money for the care of;
6. You have family members that you want to leave property for, but want it kept in a trust for their protection;
7. There is any tension or anticipated tension between family members in relation to property and assets;
8. You have significant assets;
9. You have an active business or businesses;
10. You intend for people who are not related to you to benefit from your estate;
11. You intend to leave property in trust for the care of animals;
12. You intend to leave gifts to charities.

You need a Will.

Q: Should I Make a Holograph Will?

No. You should not. Holograph Wills are a quaint legacy form of testamentary instrument that remain legally possible, and they made more sense in an era before typewriters and computers, when handwriting was still the dominant mode of written communication and when individuals had distinctive and recognizable handwriting styles. It is good as a matter of public policy that holograph wills are still possible, but they are practically useful only in limited situations, those situations mainly being when there is some emergency or urgency to make or re-make a Will, and no time to get to a computer and printer or to find two appropriate witnesses. But if you haven’t found yourself stranded on a deserted island without a laser printer and only your co-pilot, and it’s important to you that your Will be enforceable, then it’s best to make a conventional Will and get yourself two witnesses.

Q: Can I Appoint Guardians for My Children?

While a Will is primarily meant to give directions as to the distributions of a person’s property, in Newfoundland and Labrador it is also possible for a parent to appoint one or more persons to have custody of a child in the event of their death. The legal authority for this is not in the Wills Act, but in section 68 of the Children’s Law Act, RSNL 1990, c C-13. Of course, this would not operate to override the custody rights of a surviving parent, in the case of separated or divorced parents.

Q: Do I need a Lawyer to make a Will?

It depends, said the lawyer. It is possible for a person to make their own Will, and the simpler their circumstances and intentions, the more likely they can manage it without professional help. However, the more complex a person’s circumstances or intentions, the more advisable it is to get professional for a lawyer who practices in the area of Wills and Estates. Even for very straightforward estate plans, lawyers can be helpful for the following reasons:

1. Helping you identify or fix problems you may not have thought of;
2. Making sure the Will is properly witnessed by independent witnesses;
3. Keeping a separate record of your instructions and intentions;
4. Holding your original documents, if you need them stored, and creating backup copies;
5. Generally, making the Will much harder to challenge, even if it was worded exactly the same way as if you did it yourself;
6. Helping you identify poor drafting or language that would not be effective or that would create problems;
7. Helping you with wording to give effect to your intentions;
8. Obviously, helping with any more complex wording or planning;
9. Connecting you with tax advisors or other professionals, when necessary;
10. Just doing the work so you don’t have to.

For more information, feel free to read our estate planning guide.