What is a Will?

A Will is a legal document that expresses your wishes for how your property and assets will be distributed after your death. It also names the person or persons who will be responsible for carrying out your wishes, known as the executor or executors. Having a valid and up-to-date Will is essential for ensuring that your estate is handled according to your preferences and that your loved ones are protected from unnecessary stress and conflict.

What makes a Will valid?

In Nova Scotia, there are specific requirements for making a valid Will. These include:

  • You must be at least 19 years old, unless you are married or in the Canadian Armed Forces.
  • You must be of sound mind and capable of understanding the nature and consequences of your actions.
  • You must sign the Will in the presence of two witnesses who are not beneficiaries or spouses of beneficiaries of your will.
  • The witnesses must also sign the Will in your presence and in the presence of each other.

If you do not meet these requirements, your Will may be declared invalid by the court and your estate will be distributed according to the rules of intestacy, which may not reflect your wishes or the needs of your family.

What are the benefits of having a Will in Nova Scotia?

There are many benefits to having a valid Will in Nova Scotia, six of the main ones being:

1. You can choose who will inherit your property and assets, and in what proportions.

This is particularly important if you are in a common-law relationship, where the rules of intestacy do not consider your partner a spouse/ family member, potentially excluding them from inheritance.

2. You can appoint a guardian for your minor children and provide for their care and education.

Important to note is that the court can ignore guardianship set out in a Will in Canada if it finds that the appointed guardian is not suitable or willing to act as the child’s legal guardian, or if it is not in the best interests of the child. The court may consider factors such as the child’s wishes, the relationship between the child and the guardian, the guardian’s ability to care for the child, and any other relevant circumstances. The court may appoint a different guardian or order that the child be placed under the care of a child protection agency. This is why it’s a good idea to talk to who you are appointing ahead of time as if they turn the guardianship down, you can find another suitable guardian.

3. You can create trusts for beneficiaries who are minors, disabled, or have special needs.

When a minor inherits money or property, they cannot legally manage it until they reach the age of majority. Therefore, inheritances for minors need to be put in a trust, which is a legal arrangement that allows a trustee to hold and distribute the assets for the benefit of the minor. A trust can protect the inheritance from creditors, lawsuits, or irresponsible spending, and can also provide tax advantages and flexibility for the minor’s future needs.

4. You can make charitable donations or gifts to friends or organizations that are important to you.

One of the most impactful ways to support a cause you care about is to leave a donation in your Will. This also has tax benefits as in Canada, donations to charitable organizations in Wills generate a tax credit that can be applied to your final tax return. This can lower the amount of tax payable by your estate or your beneficiaries.

5. You can minimize taxes and fees, such as probate taxes, that may be payable by your estate or your beneficiaries.

Probate taxes can greatly impact your estate and what you have available to distribute to your loved ones. There are ways to reduce probate with the help of trained accountants and lawyers.

6. You can avoid or reduce potential disputes among your heirs or creditors.

A will can reduce disputes among your heirs, beneficiaries, and creditors by clearly stating how you want your estate to be distributed. A will can also prevent legal challenges or conflicts that may arise from intestacy laws or unclear inheritance claims. A will can help you avoid unnecessary costs, delays, and stress for your loved ones in a difficult time.

Once I write a Will, does it ever need to be updated?

If you already have a Will, it is important to review it regularly and update it as necessary. Some life events that may trigger the need for a revision include:

  • Marriage or divorce
  • Birth or adoption of a child
  • Death of a spouse, beneficiary, executor, or guardian
  • Change in residence or citizenship
  • Change in financial situation or assets
  • Change in personal preferences or values

A Will is one of the most important documents you can have to protect yourself and your loved ones. If you do not have a Will, or if you need to update your existing one, you should consult a lawyer who specializes in estate planning. A lawyer can help you draft a Will that meets your needs and complies with the law. A lawyer can also advise you on other aspects of estate planning, such as powers of attorney, health care directives, and probate.

Having a Will is not only a smart and responsible decision, but also a gift to those who care about you. By making a Will, you can ensure that your legacy is preserved and that your final wishes are respected.

The above is provided for informational purposes only and does not constitute legal advice — contact a lawyer to discuss your personal circumstances and learn your options.

Teryl Scott Lawyers Inc. Related Services

To learn more about our services in Wills and estate planning, please visit our Wills & Estate Planning page. You can also visit our Advanced Estate Planning page to learn how we can help you to plan your estate while minimizing probate taxes.

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