Ask The Expert: Do I Need A Lawyer To Make A Will?

Q: We recently had our first child. Now that we’re parents, we want to make sure our child is taken care of in the event of an emergency. My friends keep telling me I need to visit a lawyer to help us draft a will, but the lawyer fees are so expensive. Do we actually have to visit a lawyer to make our wills? Do we have any other options?

—New protective parents

Congratulations on taking the first step toward making your wills! Putting your wishes in writing is one of the best ways to protect your loved ones in the event you pass away unexpectedly.

Not only will you be able to designate a guardian and custodian for your children, but you’ll be able to choose an executor to handle the estate administration process, and decide how you’d like your assets to be distributed to beneficiaries. It also reduces the burden on your family since they won’t have to guess your wishes.

The simple answer: no, you do not need a lawyer to make a legal will in Canada.

There are many options you can explore to ensure you’ve protected your loved ones with an estate plan. It’s important to choose the option that best fits your needs as a family. The legality of your will is based on the final will and the correct signing and witnessing of the document. As long as you’ve met all the criteria, you have a legal will!

There are many ways to go about making your legal last will and testament. Many of these options don’t actually require a visit to a lawyer or a notary. But before we get into that, let’s go through the basics about what makes a will legally binding in Canada.

What Makes Your Will Legal?

The basic criteria for a legal will in Canada are:

• You must be over the age of majority (there are some exceptions)
• You must be of sound mind and have the mental capacity to make a will
• Your typed will must be signed in the presence of two valid witnesses. Those two witnesses must also sign the document. (Note that if you handwrite your will – called a “holograph” will – you do not require any witnesses)
• Signatures must be at the end of the document and signed in wet ink. (You must use a pen and paper. It is not currently legal to sign wills digitally.)
• The original document must be stored offline as a physical copy.

There are some nuances in provincial legislation, but you’ll notice none of the requirements require the involvement of a lawyer.

While some people may want to turn to lawyers for legal advice or to handle any complexity in their life situation, there are several ways to make a legal will in Canada.

Different Options For Making Your Will

Regardless of how you decide to make your will, it’s really important to remember that what makes your will legal has nothing to do with if it was created by a lawyer. Here are some options for creating your legal will:

• Holographic Wills: A holographic will is written and signed by hand, without the help of any mechanical devices (computers, typewriters etc.). This is the only type of will that does not require any witnesses. While it is a very cost-effective option for creating your will, it is not recognized in all provinces. It’s also very common for people to make mistakes, contradict themselves, or omit the type of information that would be included using other methods.
• Online Wills: Online will platforms make it easy for you to complete your legal will and estate planning documents at home. This is a convenient and relatively affordable option for those who do not have very complex estates. Platforms like Willful walk you through a series of questions about your life situation to ensure your will fits your needs and provides detailed instructions on how to make your document legally binding. Some online will platforms, like Willful, even offer unlimited updates for life so you can make changes for free as your life changes.
• DIY Will Kits: These are the fill-in-the-blank documents you’d typically find at your local office supply store. They are a good budget-friendly choice if you have a very simple estate with no specific requests. However, since they’re one-size-fits-all, they may not account for your unique life situation. You’ll also need to purchase a new kit anytime you need to make an update.
• Lawyer-Drafted Wills: For some people, it may be ideal to visit a lawyer. If you have a complex estate or need personal legal advice, a lawyer-drafted will might be the way to go. Lawyers will be able to customize your will to fit your needs. However, it can be pricey and you’ll need to engage a lawyer each time you need to make a change.

It’s a common misconception that lawyer-drafted wills are “safe” from claims after you die. In Canada, someone can bring a claim against a will regardless of how it was prepared — yes, even if it was made by a lawyer.

Erin Bury is the co-founder and CEO of Willful. Her mission is to encourage people to plan for the unexpected and help every Canadian complete their estate planning documents. Willful is an online estate planning platform that makes it affordable, easy, and convenient to create your will and power of attorney documents in less than 20 minutes. You can read our full review of Willful here.