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There are certain requirements for making a valid Will. It is important to understand these requirements so that your wishes are followed.
To make a valid Will, you must be 18 years of age or older. There are some exceptions to this, however. If you make a Will when you are under 18, it will be valid if you were:
You must be of sound mind to make a valid Will. This means you must understand the value and extent of your property. You must also understand that you are leaving the property to the beneficiaries named in your Will. When a lawyer prepares a Will, they have a duty to make inquiries about whether you are of sound mind.
Over the years, court decisions have helped clarify what exactly “sound mind” means. To be of sound mind you must:
The person making a Will is called the testator.
Your must make your Will voluntarily without someone else unduly influencing you. Undue influence is when someone forces, threatens or improperly influences you. It is something more than offering advice or suggestions. The pressure must be so great that the testator feels unable to resist or refuse the pressure. If you make a Will under these circumstances, a court can invalidate it. Courts have explained undue influence like this…
Undue influence is influence which overbears the will of the person influenced so that in truth what he or she does is not his or her own act. The domination of another person’s will may occur through manipulation, coercion or outright but subtle abuse of power.
Older, infirm individuals or those dependent on others may be vulnerable to undue influence.
It is not unusual for the issue of undue influence to come up at the same time as the issue of sound mind. These issues are not, however, the same thing. Just because someone is of sound mind, does not mean that they are not vulnerable to undue influence.
A court can give effect to a Will even if the requirements are not met as long as the intention of the deceased person is clear. In appropriate circumstances, the court may agree to recognize the document. This application process can be time consuming and costly. It may also not always result in the document being legally recognized.
Under Saskatchewan law, a Will must be in written form and signed by the testator. Unless you make a Holograph Will, you must sign your Will in front of two witnesses. Each witness must then sign the Will.
A beneficiary or the spouse of a beneficiary should not witness a Will. They will lose any benefit under the Will unless a court directs otherwise. Witnesses must also be of sound mind.
Wills can be witnessed using electronic means, such as Skype or Zoom, if the following requirements are met:
The Law Society of Saskatchewan has set out other requirements for lawyers to follow when a Will is witnessed electronically. These requirements are in place prevent issues such as fraud, undue influence and lack of sound mind.
An Affidavit of Execution of one of the witnesses is required when applying to have the court deal with the estate. It is always a good idea to have the witness complete the affidavit and swear it before a Commissioner for Oaths when you make your Will. This can avoid the trouble and expense of locating the witness in the future, assuming they are alive and capable.
A lawyer usually prepares a Will. A lawyer can help protect your interests and ensure that:
Holograph Wills are a special type of Will that does not need to be witnessed. They are valid in Saskatchewan, but they have special rules. For a Holograph Will to be valid, the testator must write it entirely in their own handwriting and sign it.
Although Holograph Wills do not need to be witnessed, issues may still arise when the Will is submitted for probate. At that time, the court requires an affidavit indicating that another individual saw the Will being made and signed. If this cannot be done, someone must confirm the handwriting of the testator.
Form Wills, which may be purchased online or in stores, have printing other than the testator's own handwriting. Because of this, they do not qualify as Holograph Wills. Form Wills must comply with the normal requirements of a Will. This includes having two individuals witness the Will.
There may be different rules depending on what type of property a Will deals with and where it is located. The validity and effect of giving real property in a Will, such as land, is determined by the law of the place where the land is located. For personal property, the validity and effect is determined by the law of the place where the testator lived at the time of their death.
Each province sets its own laws regarding the requirements of a valid Will. There may also be different rights for dependants' relief or division of family property. If you move to another province or out of the country after you make a Will, you may want to check with a lawyer in your new area. This will help you determine how your Saskatchewan Will applies to where you now live.
Depending on your plans, you may want to consider making an international Will. You will need a lawyer's assistance to do this. An international Will follows a standard format for Wills. This standard format is recognized by an international convention. A proper international Will is valid in any jurisdiction that has signed on to this convention. The convention is included at the end of The Wills Act.
One of the advantages of having a Will is being able to choose someone to look after your estate. It is a good idea to consider the type of things your executor will need to do and appoint someone who is capable and trustworthy.
A Will allows you decide what you want to happen to your property after you die. There are different options you can consider for how you are going to deal with your property in your Will. There are also some types of property that cannot be dealt with under a Will.
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