Making a Will

Click here to watch Dalhousie University's Schulich School of Law Professor Faye Woodman talk about "What You Need to Know About Wills"

You can find this information and more in The Legal Information Society of Nova Scotia’s book, It’s In Your Hands. For the chapter Wills, click here.

Make your will now

What is a will?

What is an estate?

After you die, your assets together are called your estate.

Your assets are anything worth money. For example:

your house or condo
any other land you own
bank accounts
investment accounts and GICs
valuable jewelry
valuable artwork
other household and personal items
your vehicles.

Pets are also assets, as the law thinks of animals as personal property.

Assets that are not part of your estate

Your estate typically excludes:

assets with a named beneficiary. Here are some examples:
- registered savings accounts that let you name someone to get the money directly, like RRSPs, RRIFs, and tax free savings accounts (TFSA)
- pension plans
- life insurance policies.
property that you own jointly with someone else, with right of survivorship. For example, if you and your spouse own your home as ‘joint tenants and not as tenants in common’, the home goes directly to your spouse on your death.

When you die, these types of assets are said to “pass outside the will”. For example, the bank or trust company transfers the RRSP or RRIF, or pays it out, to the beneficiary you named. This payment does not take into account tax consequences, which must be paid out of the assets that pass through your will. The same is true if you have life insurance that names a beneficiary, although typically there are no tax consequences for life insurance proceeds. If you name your estate as beneficiary instead of a person or charity, the money goes to your estate and will be distributed as you direct in your will.

Assets you share with a spouse or minor children go to the surviving owners when you die. Shared assets with anyone else, including adult children, are not automatically assumed to go the survivor owner, so you should clearly set out in writing what you want to happen with those assets on your death and who should benefit from them. For jointly owned accounts, on your death the account may legally pass to the joint owner according to the financial institution paperwork. But be aware that the joint owner may then have a legal responsibility to share that account with other beneficiaries of your estate. If you want to leave assets to family members other than your spouse or minor children by joint ownership, see a lawyer.

You should check to make sure you know how assets with a named beneficiary and shared assets are set up, and who will benefit when you die:

Check with your bank to see how your accounts are set up if jointly owned.
Look at the deed to any property you have (house, land, condo) to see if you own the property with another person (called 'joint tenancy with right of survivorship', which is different from tenancy-in-common), and make sur eyou understand what that means.
Check with your bank or trust company to see who benefits from your RRSPs, RRIFs, and TFSAs, other investments, or life insurance when you die.

Also ask if you can name a back-up beneficiary (also called an “alternate beneficiary”) for those assets that permit it. If you don’t do this and the beneficiary you named dies before you or at the same time as you, these assets go into your estate and are given out based on what you say in your will, or based on the law that applies if you die without a will (Intestate Succession Act).

If you are not sure about who will benefit from these assets when you die, see a lawyer.

Debts and your estate

Why make a will?

What happens if I die without a will?

Nova Scotia has a law called the Intestate Succession Act. This law directs what happens if a person dies without a will. Intestate means a person who dies without a will.

If you die without a will, or you have a will but it is not legally valid, your property is distributed to the people considered to be your nearest relatives as listed in the Intestate Succession Act. The rules are not flexible. The distribution may be different from what you would want.

The basic rules are:

If you are survived by your legally married spouse and had no children all your property goes to your spouse
If you are survived by your legally married spouse and you had one child, the first $50,000 goes to your spouse. The rest is equally divided between your spouse and child.
If you are survived by your legally married spouse and more than one child, the first $50,000 goes to your spouse. One-third of the rest would go to your spouse, and two-thirds of the rest to your children.
If you are survived by your children, but no legally married spouse, your whole estate would go to your children, with each getting an equal share.
If you had no legally married spouse or children, your whole estate would go to your nearest relatives by blood or adoption, by order of priority as listed in the Intestate Succession Act. Relatives by marriage are not included.
Your estate would only be paid to the government if you have no surviving relatives in your family tree.

A surviving legally married spouse will always get up to $50,000 from the estate before anyone else. If your surviving legally married spouse is not a joint owner of the family home, they may choose to take the home and household contents instead, or as part of, the $50,000.

The Intestate Succession Act gives no protection for common law partners, stepchildren, or grandchildren. So, it is especially important to make a will if you want your common law partner, stepchildren, or grandchildren to inherit something from your estate when you die.

Here’s why:

If you die without a will, only your surviving married spouse or registered domestic partner can inherit. Common law partners are not included as a 'spouse' under the Intestate Succession Act. Your common law partner will not automatically inherit your property or money that is only in your name. Your common law partner may have to go to court to make a claim on your estate, and may not be successful.
If you die without a will, only your biological and adopted children can inherit. Stepchildren are not included. They would have to go to court to make a claim on your estate, and they may not be successful.
If you die without a will, your grandchildren will only inherit from your estate if their parent (your child) died before you.

If you die without a will, there will be extra steps in the process of settling your estate, which will mean additional costs and delays. This may add to your family’s pain and distress. It will also mean that there will be less left to distribute.

Family members may disagree and argue about how you intended to distribute your property.

Someone will have offer to look after your estate. The person must apply and be appointed by a court as an administrator. That person may not be someone you would have chosen. That person will have to be bonded for 1.5 times the value of your estate, which is often costly and can be challenging to put in place.

The intestate law also applies if you do not deal with all your property in your will, either intentionally or unintentionally. In this case you are said to die partially intestate. The part of your estate not covered in your will is distributed according to the Intestate Succession Act.

Note: If you are a person registered under the Indian Act (status Indian) who usually lives on a reserve or Crown lands and you die without a will, the federal Indian Act determines who will settle your estate and who will receive your assets. The distribution is a bit different from Nova Scotia’s Intestate Succession Act. In general an estate worth $75,000 or less goes to the surviving spouse, including a common law spouse, and if it is over $75,000 it is divided among the surviving spouse and children in portions that vary depending on how many children there are. If there is no spouse or children, other family members can inherit.

Wills for persons registered under the Indian Act who usually live on reserve

Do I need a will if my partner or spouse has one?

Do I have to hire a lawyer to write my will?

A will is a powerful legal document. In Nova Scotia you can write a will with the help of a lawyer or without a lawyer; the law does not say that a lawyer must write your will.

Nova Scotians can now make a basic Will from home using our free Wills App which produces a finished document that acts as a legal Will for Nova Scotians.

Our Guide to Making your Will gives basic information about Wills and how to get help using the app.

Our information on What the Wills App does not cover explains when you cannot use this Wills App and should seek legal advice in preparing your Will.

Our pdf Instructions for signing your Will gives you step by step instructions on how to print and sign your Will in front of independent witnesses and other important information about the formalities involved.

However, it is always best to have a lawyer write or at least review your will. A lawyer will help you make sure what you want is set out clearly and in proper order. A lawyer can save a lot of trouble and expense for the people who should benefit from your will and for the person you name as your executor.

You should have a lawyer read any document that may affect your will. Examples are a separation agreement, shareholder agreement, court order, or beneficiary designations you make on investments and life insurance.

You should talk with a lawyer no matter what you put in your will. But some situations are more difficult than others. Having a clear will makes all the difference in the world to the people who depend on you.

Your will must be worded carefully. A lawyer can:

make sure your will clearly describes your wishes
make sure your will follows the law
help you deal with things that you might not have thought about
tell you what you can do now to make it easier for your executor to deal with your estate after you die
answer any questions about the process of dealing with your estate
give proof in the future that you made your will by your own free choice, without pressure from anyone else, and
give proof in the future that you had testamentary capacity (were “of sound mind”) to make your will.

A lawyer can also help with problems like:

Family pressure. You might feel that a family member or other person is pressuring you to leave money or property to them in your will. You can talk to a lawyer about this.
Worries about family members. You might worry that someone who depends on you will not be able to manage their financial affairs if you die before them. In these cases, you can talk with the lawyer about how to best provide for that person.

What does it cost for a lawyer to do a will?

Common parts of a will

The will contains your instructions about what you want done with your property after you die. The language should be clear and simple, so no one is confused about what you meant.

A will should have several sections, called clauses:

Revocation
The will should say that you revoke, or cancel, all previous wills and codicils. A codicil is a document that changes a will.

Appointment of an Executor
In your will, you should name someone as your executor and name a back-up executor. Your executor carries out your wishes as set out in your will when you die. Your executor must make sure they know what all your assets and debts are, pay your debts out of your assets, and then distribute what is left in your estate based on your instructions in your will.

More information about the executor's role is below, at 'Who looks after my will when I die?'

Disposal of Property (Specific Gifts)
This section of the will says who will get specific property (for example, a cottage, an antique car, valuable artwork, valuable jewelry, a specific amount of money) or property generally, and under what conditions.

A will comes into force only after your death. Until you die, you can deal with your property as you wish. For example, if you leave your cottage to your niece in your will, you could still sell it before you die and use the money as you wish. The will can only dispose of property that you still own at the time of your death.

As well, if you are leaving property to someone, you may want to say what should happen if they die before you or at the same time. For example, if you leave the cottage to your cousin, do you want your cousin's children to inherit it if your cousin dies before you or do you want the property to go to someone else?

Residuary Clause
Your will should include a residuary clause. This clause says what you want done with all your assets that are left after taxes, debts and expenses are paid and specific gifts have been given out.

If your will does not have a residuary clause, the remaining property (called the residue) will be treated as if you had died without a will. This means it will be distributed according to a provincial law called the Intestate Succession Act.

Other Clauses
A will may contain other clauses to suit your needs. For example, you may want to recommend a guardian for your children (although it is better to do that in separate child guardianship document), name a caregiver for your pets and leave that person a gift of money to thank them or to help with the expenses of taking care of your pet, create a trust fund, or set out the powers of the executor.

Legal requirements of a will

The Nova Scotia Wills Act has certain legal requirements to make a will valid. Your will must meet all the legal requirements to be valid. The legal requirements are listed below.

Age: In Nova Scotia, you must be 19 years old or older to make a will. There are a few exceptions. For example, a person under 19 can make a will if they are or were married.

Capacity: You must be mentally competent to make a will. It is also called having testamentary capacity. This basically means that at the time you sign your will you must:

know that you are making a will and understand what a will is,
know what property you own and have a general idea what it is worth
know how much money you owe; and
be able to name the people in your family you should gift your estate to (even if you do not intend to), and other people you wish to leave something.

If you lose capacity after you have made your will, the will is still valid. You should make your will while you are in good health so that your capacity to make one is not questioned. Whether you are capable of making a will can be questioned:

if your ability to think clearly is affected by illness (including dementia or Alzheimer’s) or pain
if you are taking drugs
if you feel pressured to write a will because someone is insisting that you do one. A will must be made without pressure or influence by anyone, including people you might rely on to help you financially, for housing, or for personal needs and health care.

This is not a complete list. But it gives you a sense of the challenges that are often made to the validity of a will. And more than one of those criteria may apply to any situation.

Even if you have some trouble understanding information or lack some decision-making ability, you might still be able to meet the legal standards to make a will. A health problem that affects your thinking matters, but it is not the only thing that matters. For example, someone in the early stages of Alzheimer's who has a bit of trouble with thinking and reasoning might still be capable of making a will. Whether you are capable of making a will is a legal question, not a medical one. However, if that is your situation you should get help from a lawyer who does estate planning and who has experience working with people who have some decision-making, reasoning, or memory problems. You might still be able to do a will under the right circumstances and with the information explained in a way that you are able to understand.

If you don’t have testamentary capacity, or you are pressured or influenced by anyone else to do one, you should not make a will. If you do make one, someone could challenge your will in court, and your will would probably not be valid. In that case, you would be considered to have died without a will.

Knowledge: You must know and approve of the contents of your will. The will may be invalid if you were misled by fraud or simply by accident. It may also be invalid if someone put pressure on you to do your will or put certain clauses in it. This is called undue influence.

Written: A will must be in writing, but it does not have to be typed: it can be handwritten or printed. However, video, audio or digital recording, or any other way of communicating your wishes, are not considered to be valid wills.

Signature: You must sign your will at the end. You must sign it in front of two adult witnesses who must be present with you at the same time, unless it is a holograph will. If you cannot sign the will, you can ask someone to sign it for you in front of you and you must tell the two witnesses that the will is yours.

When you are signing your will, you should put your initials on each page and number the pages so that pages cannot be replaced or removed from the will.

You should put the date on your will.

Witnessed and signed by two other people: Your two witnesses must also sign the will in front of you and in front of each other. Your witnesses should also initial each page. The witnesses must be at least 19 years old. They must not be beneficiaries or be married to someone who is a beneficiary. The witnesses do not need to know what your will says.

You should also arrange for at least one of the witnesses to swear an Affidavit of Execution.

What is an Affidavit of Execution?

An affidavit of execution is a sworn statement that the witness saw you sign your will on a particular date and that you signed in front of both witnesses.

An affidavit of execution can be made any time after you sign your will. It is best to do it right after the will is signed because witnesses might move away or die before you after the will is signed. After your death, your executor can use the affidavit in court to show that the will was properly signed and witnessed. If there is no affidavit, the executor will have to find one of the witnesses and have the witness swear an affidavit when the executor applies to Probate Court for authority to act on the
instructions in your will.

The witness must sign the affidavit of execution in front of a lawyer or a notary public.

You can see an affidavit of execution on the Nova Scotia Courts website, under Probate Court forms. Look for “Affidavit of Execution of Will or Codicil.”

You can download a fillable pdf affidavit of execution here:

Use version 2 of the affidavit (93 KB) if you signed the will by making your mark and/or if you could not read the will and it was read out loud to you before you signed it. Otherwise, use version 1 (67 KB) .

Arrange for one of your witnesses to swear the affidavit of execution in front of a lawyer or notary. The witness who is swearing the affidavit must not sign it until they are in front of a lawyer or notary. This should be done in person. This can be done at any time after you and your witnesses sign your will. But it is best to do it right away, because witnesses might move away or die before you after the will is signed.

Lawyers and notaries will generally charge a fee for this service in the range of $40 to $75. You can call law firms near you to make an appointment for the witness and to find out the cost. If you cannot pay a lawyer you can try Nova Scotia Legal Aid.

Once the affidavit of execution is complete, keep it with your will. After you die, your executor will use the affidavit at Probate Court to show that the will was properly signed and witnessed. If no affidavit of execution has been done by the time you die, your executor must find one of your witnesses and have the witness swear an affidavit then. There will most likely be added costs, and this will take extra time.

Can I choose who gets my property?

In most cases, you are free to deal with your property as you wish. However, Nova Scotia laws place some limits on how you may distribute your property in your will. The laws expect you to give your dependents a fair share of your estate. Those laws are the Testators’ Family Maintenance Act and the Matrimonial Property Act.

Testators’ Family Maintenance Act

This law tries to make sure that you leave your dependents with money and support whenever possible. Under this law, dependents are your children of any age, including legally adopted children, and surviving married spouse or registered domestic partner.

Common law spouses, divorced spouses, and step-children who have not been legally adopted are not dependents under this law.

If you leave a dependent out of your will, or leave them less than expected, they can go to court to make a claim for support from your estate. The judge thinks about all the circumstances of a case in deciding whether to give support to your dependents. They include:

whether a dependent deserves help (what is their character and conduct),
whether there is any other help available to the dependent,
the dependent’s financial situation,
any services the dependent provided to you, and
your reasons for not providing for your dependent in the will. It helps if you put the reasons in writing and sign the document or include the reasons for leaving someone out in your will.

This is not a complete list. The judge may take other factors into account. The application for support must be made within six months after probate or administration of the estate has been granted. A person who wants to apply for support or make a claim to property under this law should talk with a lawyer.

Matrimonial Property Act

This law recognizes that both spouses contribute to a marriage. The law says that when one spouse dies, the surviving spouse can apply to court for a division of the matrimonial assets, in addition to any other rights of the spouse under the will or on intestacy. The surviving spouse must apply to the Supreme Court. The surviving spouse must apply for division within six months after the court has granted probate or administration of the estate. Anyone who wants to make an application should first talk with a lawyer.

A judge decides what share of the matrimonial property the surviving spouse should get.

Common-law spouses are not covered by this law unless you have a registered domestic partnership. Then they are included from the date you registered the partnership.

Family member

The Testators' Family Maintenance Act and Matrimonial Property Act say you are responsible to provide for your family and dependents, but otherwise you are generally free to deal with your property as you wish. You may decide to leave your estate to someone other than your closest relatives. You may decide to leave it to some family members but not to others. If you want to do these things, you should get advice from a lawyer and record your reasons in writing.

Who looks after my will when I die?

Your executor looks after your will when you die. An executor is the person or corporation you name to carry out the terms of your will. Your executor must make sure they know what all of your assets and debts are, pay your debts out of your assets, and then distribute what is left in your estate based on your instructions in your will. Your executor must follow the instructions in your will as closely as possible. However, they will not be able to follow instructions that are illegal, impossible, or would harm someone. Some types of court orders and contracts may also affect whether your instructions can be followed.

The executor’s job includes:

paying off your debts with money from your estate,
giving your assets to your beneficiaries according to your wishes as set out in your will.

Your executor may also have to do paperwork for the Nova Scotia court that deals with estates, called Probate Court.

An executor is also sometimes called a trustee. This is because they have legal title to your assets after you die, while they are managing your estate, until they distribute everything to the beneficiaries you name in your will. The executor must also file your final tax returns, and the Income Tax Act calls your executor a trustee. And, if you leave property to anyone who can’t manage their own finances (like minor children), the executor may manage the property for that beneficiary as trustee for them too.

If you do not name someone to be an executor in your will or if you die without a will, your next of kin will usually ask the Probate Court to appoint someone to fill the executor's role. This person is called an administrator, and Nova Scotia’s Probate Act says who can apply to do that job.

The court uses the term personal representative for people who are appointed as an executor or an administrator.

It is best to name an executor in your will. It is also wise to name at least one back-up executor. That way, you can be sure that someone you know and trust will handle your estate. Also, you can give your executor broader power to make decisions and to act for you than the Probate Court will give to an administrator.

Who should I choose as an executor?

Can I choose a trust company to act as my executor?

Can the person I choose as executor refuse the position?

Can I appoint joint executors?

What does the executor do after I die?

What is a holograph will?

What happens if my intentions are unclear in my will?

Should I put my burial wishes in my will?

Things to do after you make your will

Can I change my will?

You can change your will at any time up until you die as long as you are mentally competent and are not being influenced or pressured by anyone else to make those changes. You should look at your will from time to time to make sure it is still what you want. For example, you may no longer own property mentioned in your will. You may want to make changes because of births, adoptions, deaths, marriages, new common law relationships, separations or divorces in the family.

There are two usual ways to change your will:

The best way is to make a new will. The first clause of a new will usually say that it revokes (cancels) any previous wills. The most recent will, as long as it is properly signed and witnessed, is the one that will be used following your death.

You can write a separate document called a codicil to change part of your will. A codicil must name the will being changed, including a reference to the date the will was signed. It must clearly say which clauses of the will are being removed or changed and clearly set out the new terms of the will. The codicil should also say that apart from the changes it makes, you confirm the terms of the original will. You must sign the codicil and have your signature witnessed in the same way as your will. But codicils should be avoided. A codicil is generally used only to make very minor changes to a will. Make a new will if you wish to make major changes to your will or if you already have one codicil. Codicils are frequently lost and frequently written improperly. They are a hold-over from a time before computers, when wills were handwritten or typed, and it was faster to write a codicil.

Never change your will by marking or crossing out words in the will. Instead, make a new will.

You must be mentally competent at the time you make changes to your will. You must also not be influenced or pressured by anyone else to make the changes. If it is found that you were not competent or were influenced to make the changes, your new will or codicil may be successfully challenged in court.