Wills & Estates

A will is an important legal document, and writing a will is not an easy job. You can make a will on your own, but it may not have the effect you want or not be enforced if it is done incorrectly. For this reason, most people hire a lawyer to write their will. The cost of hiring a lawyer to write a simple will is usually between $300 and $500.

You can use a will form in Manitoba, but it would be preferable to have a lawyer write your will. The will must be properly signed and witnessed. For a formal will, you need to sign the will at the end and initial or sign each page of the will. You need two people present to see you signing the will. They must each sign the end of the will as a witness, and initial or sign each page of the will. The witnesses should not be people who benefit from the will by receiving gifts or property. Remember that if it is not properly signed and witnessed, the will may be invalid.

A will that is totally written in the maker’s handwriting, is signed and is dated is legal in Manitoba. This is called a holograph will.

Holograph wills do not have to be witnessed by anybody.

Because problems often there are problems with holograph wills, they should only be used in emergency situations.

You may want to talk to a lawyer before making a holograph will to make sure that your wishes are clearly stated.

If the holograph will must be probated, the Probate Court will usually require an affidavit from someone who can verify the maker’s handwriting.

Resources:

Holograph Wills Video

A Manitoba resident under the age of 18 years cannot make a valid will unless they are married or have been married or are a member of the military forces or a mariner or seaman at sea.

No, but if your children are under 18 years or are financially dependent on you at the time of your death, they can apply to court for support from your estate if you don’t leave them anything, or if you don’t leave them enough. If your children are adults living on their own and are no longer dependant on you financially, they cannot apply for support from your estate and you do not have to leave them anything in your will.

No distinctions are made between naturally born children and adopted children.

No, but your spouse has the right after your death to apply for support from your estate if your spouse is dependent on you at the time of your death. Also, if you own the family home, your spouse is entitled to continue to live in the home until death, even if you leave it to someone else. Finally, on your death, your spouse has 6 months in which to make an application for an equal division of your marital property. This is the same kind of application that can happen when a married couple separates.

A spouse includes a common-law spouse or same-sex partner.

A will can be challenged for a number of reasons:

• The person making the will was not of sound mind at the time they made the will
• Formal requirements were not complied with (for example, there were no witnesses)
• The maker of the will did not adequately provide for their spouse, common law partner, or children as required by law
• Fraud, undue influence, or suspicious circumstances

To make sure your wishes are carried out and that you have complied with the law, it is advisable to have a lawyer prepare your will.

You can indicate in your will whom you want to be the guardian of your children. That person will still have to go to court to get guardianship. The court makes the final decision about guardianship. However, instructions in a will can be taken into account by the court as a highly persuasive statement of the parent’s preference.

Yes. You can make an addition to a will, called a codicil. Any changes to a will must be executed in the same manner as the original will. The alteration or codicil must be signed by the maker of the will and two witnesses.

You can do the following:

• make a list of the property that you own
• note which property is already jointly owned
• decided who you might want to appoint as the Executor(s) of the will,
• confirm your Executor(s) are willing to take on that responsibility
• confirm guardians and trustees beforehand
• prepare a list of the names, addresses, and occupations of the people who will be listed in the will.

Your will should be kept in a safe place. You may want to notify the Executor(s) about where the will is located and make sure that it is accessible to them.

The original beneficiary as listed in the will receives nothing. The maker of the will is free to deal with their property as they wish during their lifetime.

Yes, a will made in another province is valid in Manitoba. The laws of the province in which land is located govern the validity of the will regarding land. With a few exceptions, the laws of the province in which you live when you pass away govern the validity of the will regarding the rest of your property.

Your will is still valid if you get divorced. However, unless you specify otherwise, if you leave property to your former spouse or if you appoint your former spouse as Executor or trustee, your former spouse is treated as if your former spouse died before you.

The Executor is the personal representative of the estate. Usually the Executor has to probate the will. This is an application to the Court to have the will proven as valid before the estate is looked after.

Other things that the Executor will do include:

• Make funeral arrangements and pay for these from the estate
• Pay debts of the deceased from the estate
• Collect money owing to the deceased
• File final tax returns for the deceased and the estate
• Distribute the estate according to the Will
• Keep a record of the money received and paid by the estate

Resources:

Executor’s Checklist

Executors can be paid an amount from the estate. This amount must be fair and reasonable based on how complex the estate is. The amount may be a percentage of the estate’s value. Disputes about the amount that an Executor is to be paid can be decided by the court.

Yes.

No. Your Executor does not have to live in Manitoba. However, it is simpler for your Executor to carry out the duties of an Executor if he or she lives in the same province. Therefore, you should consider appointing an Executor that lives in Manitoba.

An Executor in Manitoba must be 18 years old to act. If the Executor of an estate is a minor, a guardian would act on their behalf until they are 18.

An Executor can be anybody you choose. In Manitoba, you must be at least 18 years old to carry out the duties of an Executor on your own. You might choose to name a spouse, friend, relative, business partner, trust company, lawyer or accountant as Executor. Who is best for you will depend on your situation. You can name more than one person as Executor. It is wise to name an alternate person to act as Executor in case your first choice can’t or won’t do it.

Being an Executor can be a difficult and time consuming job. Some of the things to think about when choosing your Executor are:

• The size and complexity of your estate
• If you want to have your affairs handled by a stranger or someone you know
• Whether the person is willing and able to accept the position

You can file a Renunciation of Probate form (Form 74O) with the court to remove yourself as the Executor of the estate. You can find the form online

No. You are not personally liable for the debts of a deceased person. The estate of that person is liable. If there are not enough assets to satisfy the outstanding debts, you may need to explain that in writing to the creditors. If you are still having problems with the creditors you may want to talk to a lawyer.