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Making a Will

Any mentally competent person who is 18 years of age or older can make a Will. At the time of making a Will you must be of sound mind and you must have made the Will voluntarily.

In a few instances, persons under the age of 18 can make a Will. For example, persons under the age of 18 may make a valid Will if they are married or living in a spousal relationship, or are on active duty with the armed forces.

Being of sound mind means you must understand the value and extent of your property and that it will be left to the beneficiaries named in your Will. When a Will is prepared by a lawyer 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.…

  • understand the nature and effect of your Will
  • know what property you have
  • understand the extent of property disposed of under your Will
  • have knowledge of individuals that might expect to benefit under your Will
  • understand the nature of potential claims by persons excluded from the Will

Your Will must be made voluntarily, without force, threat or undue influence exercised by someone else. A court can invalidate a Will made under circumstances of force, threat or undue influence.

When considering the matter of undue influence, courts have used explained it 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 largely dependent on others may be particularly susceptible 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. While some individuals may be of sound mind they may nonetheless be vulnerable to undue influence. Courts can set aside an entire Will or portions of it if they find that there was undue influence - meaning that someone pressured the testator into disposing of their property in a way that they would not have otherwise done. Undue influence 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.

A Will is usually prepared by a lawyer. A lawyer can help protect your interests and ensure that...

  • the requirements for a valid Will are met
  • the Will states your intentions clearly
  • you receive advice about whether the terms are enforceable
  • you get advice about the contents of the Will and general estate planning

Formalities

If all the legal requirements for a valid Will are not met, but the intention of the deceased person is clear, a court can still be asked to give effect to the document. In appropriate circumstances, the court may agree to recognize the document. This application process can be time consuming and costly, however, and may 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 Will should not be witnessed by a beneficiary or the spouse of a beneficiary. Such witnesses will lose any benefit under the Will unless they obtain a court Order allowing them to benefit.

When an application for Letters Probate or Letters of Administration is filed with the court, an Affidavit of Execution is required for each witness to the signing of the Will. It is always a good idea to have the witnesses complete this affidavit and swear it before a Commissioner for Oaths at the original time of signing. This can avoid the trouble and expense of locating the witness in the future, assuming they are alive and capable.

Holograph Wills

Holograph Wills are valid in Saskatchewan provided that they are entirely in the testator's own handwriting and signed by the testator. Holograph Wills do not need to be witnessed.

Although Holograph Wills do not need to be witnessed, it is important to note that issues may arise when the Will is submitted for probate. At that time an affidavit is required indicating that another individual saw the Will being made and signed or that the individual can 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 and do not qualify as holograph Wills. These Wills must be witnessed by two individuals.

Location of Property

Generally speaking the validity and effect of bequests of real property, such as land, is determined by the law of the place where the land is located, while the validity and effect of gifts of personal property is determined by the law of the place where the testator lived at the time of their death.

Other Jurisdictions

Each province sets its own laws regarding what is required to make a valid Will, and what rights exist 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 any part of your estate that is in a different jurisdiction.

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 that is recognized by an international convention. As long as you follow the format set out in the Convention, all of the jurisdictions which sign on to the convention will recognize your Will as valid in their jurisdiction. The Convention, included at the end of The Wills Act, is available from the Publications Centre.

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