Creating a will is always a necessary step in estate planning, but the process doesn't end with drafting the document. One essential aspect that often gets overlooked is the role of witnesses. This blog post aims to shed light on the significance of witnesses in legally binding a will, who can act as a witness, and what they need to do.
What is a Witness in the Context of a Will?
A witness is an individual who participates in the process of validating the will. They confirm that the testator, the person creating the will, has indeed signed the document. This validation is necessary for the will to be legally recognized.
Why Do You Need Witnesses?
Once you've drafted your will, the next step is to make it legally binding, and that's where witnesses come into play. You'll need at least two witnesses to sign the will, confirming they were present when you signed it. This is especially important if the validity of the will or your signature is ever questioned, as these witnesses may have to testify in court.
Who Can Be a Witness?
While you might think anyone can be a witness, there are specific criteria they must meet. The witness must be an adult and mentally sound. They cannot be a beneficiary of the will or the spouse of a beneficiary at the time of signing. It's also worth noting that the witnesses are not required to read the will or know its contents.
What If My Beneficiary or Executor Signed as My Witness?
The Legal Consequences
In many jurisdictions, having a beneficiary or an executor act as a witness to your will can be problematic and may even invalidate the bequests made to that individual. The law often sees this as a conflict of interest, as the witness could potentially influence the testator or benefit unfairly from the will. To help you navigate this tricky situation, Willfora includes a note on the instruction page of your Will that clearly identifies individuals who should not be present or act as witnesses during the signing of your will.
How to Correct This Mistake
If you find yourself in this situation, the best course of action is to update your will as soon as possible. Remove the beneficiary or executor as a witness and have at least two other individuals, who are not beneficiaries or executors, act as witnesses. Make sure to follow all the legal requirements for signing and witnessing the new will to ensure its validity.
How Many Witnesses Do You Need?
To legally bind your will, you must sign it in the presence of at least two witnesses. These witnesses must also sign the will in your presence.
The Digital Age: Can Witnesses Sign Digitally?
As of now, British Columbia is the only Canadian province that allows digitally signed wills. In other provinces, a physical signature, often referred to as a "wet signature," is required from you and your witnesses.
The Signing Process: A Step-by-Step Guide
- Preparation Before Signing
Before you even gather your witnesses, make sure to read through your will thoroughly. Ensure that it accurately reflects your wishes and that you understand all the clauses. If you've used an online will provider like Willfora, you can easily make edits and print out the most current version that aligns with your intentions. Destroy any older versions to avoid confusion.
- Choosing and Informing Your Witnesses
Select your witnesses carefully, ensuring they meet the legal criteria. Inform them in advance and schedule a convenient time for everyone to be present for the signing. This is vital because all parties must be present at the same time for the will to be legally valid.
- Initialing Each Page
To prevent any future alterations or additions to the will, it's a common practice for each person—starting with the testator (you), followed by each witness—to initial each page of the will in the designated spot. This ensures that each page is accounted for and agreed upon.
- The Final Signature
The last page of the will is where the most crucial signatures will be placed. You, as the testator, should sign your full name first. Your witnesses must remain present during your signing. After you've signed, each witness will sign in their designated spots. It's essential that you, the testator, are present when each witness signs.
- Sequence Matters
The sequence in which the signatures are placed is important. You must sign first, followed by your witnesses. All parties should be present at the same time, and you should be there when each witness signs. This sequence is crucial for the will's legal validity.
- Use of Blue Ink
It's advisable to sign the original will in blue ink. This makes it easier to distinguish the original document from photocopies, which is important for legal proceedings.
- Storing the Original Will
Once the will is signed and witnessed, it becomes your legal last will and testament. Store it in a safe, easily accessible place and let your executor and perhaps a trusted family member know where it is. Some people opt for a safety deposit box, while others prefer a secure spot in their home. To further safeguard your estate plans, you should also consider registering your will on the Canada Will Registry.
Future Requirements for Witnesses: What to Expect
Keeping updated contact information for your will's witnesses is crucial for potential future legal proceedings, such as probate or if the will is contested. An optional "Affidavit of Execution" can streamline this process by serving as legal proof of the will's validity. Witnesses may be called to testify, especially if questions arise about the testator's mental state at the time of signing. Their availability is vital, and if you amend your will, new witnesses must validate these changes, and they will be subject to the same future requirements.
Choosing the right witnesses is a crucial part of the will-making process. They play a vital role in ensuring the legal validity of your will and safeguarding your final wishes. So, take the time to select your witnesses carefully, keeping in mind the legal requirements and the long-term implications.