A will is an important legal document that sets out who will receive (inherit) a person’s property upon their death.
What is an executor?
A will should appoint an executor to deal with the property (estate). The executor must look after paying the person’s debts and other expenses of the estate, out of the estate. The executor is responsible for distributing the estate as set out in the will. There are laws, however, that can affect whether a person’s property is inherited as directed in a will. These are discussed below. There are also laws that set out what an executor can and cannot do with the deceased person’s estate.
When naming an executor, it is important to check and confirm the person is willing and able to assume the responsibilities involved.
What is a Guardian?
If a person has children under 18, their will should appoint a guardian to be responsible for the children’s care in the event both parents die. The guardian may also be appointed to look after the children’s financial affairs.
Naming a guardian in a will does not guarantee that person will be chosen if there is a dispute among friends or relatives who want to care for the children. However, naming a guardian in a will does give the court a clear indication of the parent’s wishes and can carry substantial weight as the court decides who should be the children’s guardian.
When naming someone as a guardian of children in a will, it is important to check and confirm the person is willing and able to assume the responsibilities involved.
How do I make sure my will is valid?
Three requirements must be met before a will is valid in Manitoba:
- The maker of the will must ordinarily be at least 18 years old and be of sound mind. In very few cases, the person may be younger.
- The will must be in writing.
- The signature of the maker of the will must be witnessed by at least two people, unless:
- the will is made by a member of the armed forces on active service, or a sailor at sea
- the will is written entirely in the handwriting of the person making it, and is signed and dated by that person (called a holograph will)
The Wills Act of Manitoba permits a person to ask a court for an order declaring that a particular document is a valid will, even though it does not meet these legal requirements.
Before making such an order, a judge must be satisfied by the evidence that the document contains the true wishes of the will-maker. To avoid the expense and difficulties involved in this type of court hearing, it is best to meet all the legal requirements when drawing up a will.
Usually, a person who witnesses the signing of a will (witness) cannot receive any benefits under the will. The witness’s spouse or common-law partner cannot benefit from the will either. A person who is left a gift (bequest) in a will is known as a beneficiary.
A witness to a will can ask a court for an order that a gift to that witness or their spouse or common-law partner under the will is a valid gift.
Before such an order is made, a judge must be satisfied that neither the witness nor their spouse or common-law partner improperly influenced or pressured the person making the will to make this gift. Under these provisions of The Wills Act, common-law partners are considered to be any couples who are living together and have either registered their relationship with the Vital Statistics Agency, or who are cohabiting in a conjugal relationship of some permanence. To avoid unnecessary problems, it is a good idea if the witnesses to the will are people who do not benefit from the will in any way.
If a person cannot read or sign their will, it can be read aloud, or signed on their behalf by another person or it can be signed with a mark. At least two other people must witness the signature or mark on the will.
How do I change or revoke a will?
After a will is made, it can be changed or invalidated in a number of ways.
If a person wants to make many changes to their will, it could be easiest to simply prepare a new will. If only a minor change is involved, such as naming a new person to act as executor, a simple document, known as a codicil, can be prepared. Like a will, a codicil must be witnessed by two or more people, unless it is entirely in the person’s own handwriting and is signed and dated by that person (a holograph codicil).
When a will is invalidated or no longer of any effect, it is revoked. A will is revoked if the will-maker:
- prepares a new will
- destroys the original copy
- in writing, indicates an intention to revoke the will, with witnesses
- in all but a few cases, marries after preparing it
A will is almost always invalid if the will-maker marries after it is signed. It is essential to have a new will prepared after marriage. Unlike marriage, entering into a common-law relationship after making a will does not affect the validity of that will.
If the maker of a will divorces after it is prepared, the document will be interpreted as if their former spouse died before them. Similarly, if the will-maker’s common-law relationship is terminated after the will is made, it will be interpreted as if their former common-law partner died before them. This means that even if the person left property to their now former spouse or common-law partner in the will, the former spouse or partner will not receive it. If a will-maker wishes to leave property to a spouse or common-law partner despite any future divorce or end of the common-law relationship, their will must clearly say so. Under this part of The Wills Act, termination of a common-law relationship means, for couples who have registered their relationship with the Vital Statistics Agency, that the end of the relationship has been similarly registered. For couples who have not registered, termination happens after they have lived separate and apart for at least three years.
It is important to know wills are not interpreted in this way when spouses separate, even if they have been separated for many years or are involved in divorce proceedings when one spouse dies. The separated spouse can still receive any bequests left to them in the other spouse’s will. Separated spouses must take steps to revise or revoke their wills if they want to limit the extent to which their spouse can inherit from their estate.