What is a will?

A will is a legal document that lets you say what you want done with your estate after you die. Your estate is your house, land, and personal things like jewellery and artwork. A will also lets you name an executor, who is the person you name in your will to carry out your final wishes. A will has no legal effect until you die.

A person who makes a will is called a testator. 

What is an estate?

Your estate is what you own when you die. It typically includes:

• property (land, house, condo)
• money (cash, bank accounts, investments)
• personal belongings (household goods, vehicles, valuables like jewellery or artwork).

If you owe debts when you die, for example, have any unpaid credit card bills, those debts must be paid first out of what is in your estate, and what is left may then be distributed following your will or the law that applies when someone dies without a will.

Your estate does not generally include:

• property that you own jointly with someone else
• life insurance policies with a designated beneficiary
• accounts such as a registered savings account or tax-fee savings account that allow you to list a beneficiary or someone who can receive the funds directly
• pension plans with a designated beneficiary
• land or buildings that are owned by a First Nation band.

Why make a will?

It is a good idea to have a will, even though Nova Scotia law does not say that you must make one. Making a will should give you peace of mind. A will makes it easier for family or friends to handle your affairs when you die.

There are many good reasons to make a will. A will lets you:

• deal with your important things the way you want to,
• name someone who will carry out your wishes,
• name someone to care for children or others who depend on you,
• make sure your pets or other animals will be cared for,
• save money and time by stating your wishes,
• help your family and friends handle your affairs after you die,
• lessen stress for your family and friends,
• lessen confusion about your wishes, and
• prevent disputes over your possessions.

What happens if I die without a will?

Nova Scotia has a law called the Intestate Succession Act. This law says 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 spouse and had no children all your property goes to your spouse
• If you are survived by your 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 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 spouse, your whole estate would go to your children.
• If you had no 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.
• The government would inherit if you have no surviving relatives.

A surviving spouse will always get up to $50,000 from the estate. If your surviving 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.

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. Your common law partner will not automatically inherit your property or money. Your common law partner may have to go to court to make a claim on your estate.
• If you die without a will, only your biological and adopted children can inherit. Stepchildren are not included.
• If you die without a will, your grandchildren will only inherit from your estate if their parent (your child) died before you.

If you and your spouse die at the same time or if you are a single parent when you die, someone will have to look after people who depend on you (a child, grandchild, or person with a disability). If you die without a will, or if you do not name someone in your will to look after your children or grandchildren, the court will have to appoint someone to do this. That person will be called your children’s guardian. A person must apply to court to be appointed. And the person the court appoints might not be someone you would have chosen.

If the court appoints a guardian to look after your children, it will also often state the terms of the guardianship. Those terms might not be what you would have chosen.

If you die without a will, there will be extra steps in the process of settling your estate, which can 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.

The intestate law also applies if you do not deal with all your property in your will. 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 ordinarily 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 ordinarily live on reserve

The federal Indian Act rules for making wills apply to status Indians under the Indian Act who ordinarily live on reserve.   The Indian Act does not apply to status Indians living off-reserve, or to non-status Indians living on-reserve - provincial laws apply instead.

If you are a status Indian who ordinarily lives on a reserve you can get information about making a will from:

• Indigenous and Northern Affairs Canada (Indigenous Services Canada) online at www.aadnc-aandc.gc.ca, under ‘Benefits and Rights’, then ‘Estates’
• a lawyer who does wills and estates law, and who knows about Aboriginal law and the rules that apply to wills for status Indians who live on reserve
• the Confederacy of Mainland Mi’kmaq (CMM) has a Mi’kmaw Wills and Estates series which includes:
  1. Book One: How to Write a Will 
  2. Book Two: How to Settle an Estate 
  3. Book Three: How to Write a Power of Attorney and Personal Directive
  4. Mi’kmaq Wills and Estates & Matrimonial Real Property 

Copies are located in band offices of CMM’s member bands or can be found online at cmmns.com/program/wills-estates/

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

Yes, especially if you own anything on your own and if you want someone specific to inherit it. This includes items of sentimental or personal value, such as keepsakes, or plans, such as arranging for the care of pets and other animals in your care. You might die before your partner or spouse, or you could die at the same time in an accident. A will is the best way to let your wishes be known. You can each have a will that mirrors the other’s will. Mirror wills are separate wills with identical terms.

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

A will is an important legal document, so it is always best to have a lawyer write or at least review your will. However, the law in Nova Scotia does not say that a lawyer must write your will. 

Your will must be worded very carefully to make sure that what you want actually happens.

A lawyer can:

• make sure your will is clear about your wishes for after your death,
• make sure your will meets all legal requirements,
• make sure you plan for unforeseen events,
• help you deal with things that you might not have thought about yourself,
• tell you what you can do now to make it easier to deal with your estate after you die,
• answer any questions about dealing with your estate,
• give proof in the future that you made your will by your own free choice, free of undue influence, and
• give proof in the future that you had the capacity to make your will.

If you decide not to have a lawyer write your will, you can write it yourself or fill in a blank form of a will that you buy from a store or online. There are also books and kits available to help people write their wills. 

If you decide to write your own will, you should at least ask a lawyer to look it over to make sure that it meets all legal requirements and that it will do what you want it to.

A lawyer can help with special problems: 

• 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?

Lawyers usually charge a fee based on how much legal service you need and how complex the will is. The cost to do a will can begin at less than $200 and go up. Lawyers often charge a flat fee for doing a will. Some lawyers offer estate planning package deals. 

In a package deal, the lawyer might write your will, a power of attorney, and a personal directive and charge a lower cost than for doing the three individual documents at separate times. You should talk about fees before you decide to hire a lawyer. You should talk over the cost if you prepare the will yourself or if you want the lawyer to prepare it. 

Please contact us and we can put you in touch with a lawyer who does wills & estates work, or click here for other ways to find a lawyer.

Parts of a will and what a will looks like

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. An executor is the person who is responsible for carrying out the instructions in the will. You can read more about executors here.

Disposal of Property

This section of the will says who will get specific property (for example, a cottage, an antique car) or property generally, and under what conditions. 

A will comes into force only after your death. Until you die, you can do what you want with your property. 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. For example, if you leave the cottage to your cousin, do you want his children to inherit it if he 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 who gets the property that remains after all specific gifts have been paid out or given to your beneficiaries.

If your will does not contain 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. Intestate means a person who dies without a will.

Other Clauses

A will may contain other clauses to suit your needs. For example, you may want to recommend a guardian for your children, create a trust fund, or set out the powers of the executor.

  pdf Here is a sample will (77 KB)  to give you an idea of what a will might look like.

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. It means you:

• know that you are making a will and understand what a will is,
• know what property you own, and
• are aware of the people (like your spouse and children) that you would normally feel you should provide for. 

If you become mentally incompetent after you have made your will, the will is still valid.

Mental competence to make a will can be an issue if a person’s ability to think clearly is affected by illness, drugs, or pain. You should make your will while you are in good health so that no one questions your mental competence.

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 witnesses who must be present 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. 

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. The witnesses must be at least 19 years old. They must not be people who benefit from the will or be married to someone who benefits. The witnesses do not need to know what your will says.

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.

You should also arrange for one of the witnesses to swear an affidavit of execution.

What is an Affidavit of Execution?

An affidavit is a statement sworn in front of a lawyer or a notary public. An affidavit of execution is a sworn statement that the witness saw you sign your will on a particular date, 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 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. 

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.”

Can I choose who gets my property?

In most cases, you are free to deal with your property as you wish. However, in Nova Scotia, two laws place some limits on that freedom. Those laws are the Testators’ Family Maintenance Actand the Matrimonial Property Act. A testator is a person who makes a will. 

Testators’ Family Maintenance Act

This law tries to make sure that you leave your dependents with money and support if possible and if they need it. Under this law, dependents are your children, including adopted children, and surviving married spouse or registered domestic partner.

This law does not include your common-law and same-sex spouses as a dependent unless you have a registered domestic partnership. Then your spouse is included from the date you registered the partnership. Divorced spouses are not dependents under this law.

If you do not provide for a dependent in your will, they can go to court and ask a judge to order support. 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, the testator, 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.

What is not part of your will?

Any assets you own jointly with others go directly to the surviving joint owner on your death. They don’t form part of your estate, but are said to "pass outside the will". For example, if you and your spouse own your home as joint tenants, the home goes directly to your spouse on your death.  If you do not want this to happen, there are legal ways to specify your intent and you should consult a lawyer.

Also, assets where you have designated a beneficiary, such as RRSPs and RRIFs, pass outside the will. When you die, the bank or trust company transfers the RRSP or RRIF, or pays it out, to the beneficiary you named, taking into account tax consequences. The same is true if you have life insurance that names a beneficiary.  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.

You can designate the beneficiary of a life insurance policy or benefit plan in your will, even though the proceeds “pass outside the will” and don’t form part of your estate. If you do, the beneficiary designation will alter any prev­ious designation. Similarly, a beneficiary design­ation you make in your will may be changed by a later designation that is not in a will.

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. 

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 a 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?

Most people ask a family member or a close friend to act as their executor. You need to be sure that the person you choose has the time and the ability to carry out the many duties of an executor. The executor should be someone who will get things done. Looking after an estate can be difficult and it takes time. Sometimes it includes responsibilities that last for years.

Here are some things to keep in mind:

• The best executor is a trustworthy, reliable, and competent adult.
• Choose someone who is likely to outlive you.
• Choose someone who lives in your province to cut down on expenses.
• Your spouse, a friend, family member, or heir may be able to do a good job as executor. Many people choose their spouse or main heir as executor.
• Think about choosing someone who knows about banking and business affairs.
• You should name a back-up executor in case your first choice dies, moves away, or for some reason cannot do the job. 

You can name your lawyer as executor, but most lawyers do not act as executors. Before you name your lawyer as executor, ask the lawyer if they are willing to do this work.

Some people think about naming Nova Scotia’s Public Trustee as executor. This happens if they have no family member or friend they feel would be able or willing to act as executor. You must check first with the Office of the Public Trustee if you want them to act as your executor.

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

Your estate may be complicated. You might not have a relative or friend who is able to act as executor. What else can you do? You may want to name a trust company as your executor. You should check that the company is willing to act as executor or co-executor. If you do not check, the company may not act as executor when you die. The pros of using a trust company as executor are:

• They may be able to help you plan to save taxes and avoid problems. 
• They are strictly regulated, so you can be sure they will handle your estate properly and legally.
• They would be a neutral executor if you think your heirs will disagree about your will.
• The company may give you free advice on drafting your will and may store it for you.

The cons of using a trust company are:

• They may charge up to 5 per cent in fees.
• They can be conservative investors.
• They may not know your assets as well as a family member or friend.
• They may not know your dependentsas well as a family member or friend.
• They may not be as flexible with your dependents as a private person could be.
• The taxes for their fees are paid from the estate.

Before you choose an executor, think about the time involved in administering your estate. 

For example, if you want to set up a trust for the care, education, and benefit of your children or grandchildren, this would be a long-term commitment for an executor. In a case like this, you may want to consider a trust company rather than someone who might not be able to make such a commitment or who might die before the funds in the trust have all been distributed.

Can the person I choose as executor refuse the position?

Yes. A person named in your will as executor can refuse to act as executor. This is called renouncing. If the executor you named in your will refuses or is unable to act, your next of kin will have to apply to the court to appoint someone else. This causes delays and could cost money. 

You should ask the person you want to name as executor if they are willing to take on the job before you name them in your will. 

As well as asking someone to be your executor, you should ask another person to be a back-up executor in case your executor cannot or will not act, due to death, moving away, or for some other reason.

Can I appoint joint executors?

Yes. You can appoint more than one executor (called co-executors) to share the responsibility. Each co-executor has the authority to sign documents for your estate unless your will says something different. One possible problem is that they may disagree about what to do. Since either can sign documents, this could cause problems for your estate. It is a good idea to talk with a lawyer if you want to appoint two or more executors to act together.

What does the executor do after I die?

The executor’s job is to gather together all of your assets, pay your debts and taxes, and distribute your money and property according to your instructions in your will. The executor may have to apply to the Probate Court for authority to deal with your estate. This authority is called a grant of probate. It gives the executor power to handle your estate according to the terms of your will.

Where should I keep my will?

You should keep your will in a safe place. You might not need it for many years, and you will have to keep track of where it is. It must be somewhere that your executor can find it easily, and you should tell your executor where they can find it. 

The safest place to keep your will is a safe deposit box that is in your name only or that is held jointly with someone else. If you do not have a safe deposit box, keep your will in a fireproof place that is private, so that others cannot read the will before you die.

You could give your will to someone you trust. However, the person storing your will may move away or die. 

If you hired a lawyer to write your will, you can ask them to keep a copy as well.

Wherever you decide to keep your will, you should tell the people in your life who need to know about it where to get it when it is needed.

What is a holograph will?

A holograph will is a wholly handwritten will signed by the testator (the person who made the will), but not witnessed. 

Before August 19, 2008 holograph wills were not valid in Nova Scotia. Then the law was changed, and a holograph will made after August 19, 2008 is now legal. The courts have ruled that a holograph will made before August 19, 2008 is not valid.

If you have a holograph will, you should check with a lawyer to make sure it is valid.

What happens if my intentions are unclear in my will?

If your will is unclear when you die, your family may have to go to court to sort out your estate. Your executor will have to talk to a lawyer.

Should I put my burial wishes in my will?

This is not a good idea. Often the will won’t be found or read until after the funeral. You should tell your wishes to the person who is likely to arrange the funeral or leave separate written instructions. Here is information about funeral pre-planning.

Can I change my will?

Yes. You can change your will at any time up until you die as long as you are mentally competent. 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, deaths, marriages, or divorces in the family.

There are two usual ways to change your will:

• You can write a separate document called a codicil to change part of your will. The first words of a codicil name the will being changed. It says which clauses of the will are removed or changed and gives the new instructions. 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. A codicil is generally used only to make minor changes to a will.
• You can make a new will. It is wise to make a new will if you wish to make major changes to your will or if you already have several codicils. The first clause of a new will usually say: “I revoke all wills and testamentary dispositions of any nature and kind made by me.” The most recent will, as long as it is properly signed and witnessed, is the one that will be used following your death.

Do not change your will by marking or crossing out words in the will. It is much wiser to make a codicil or, even better, a new will.

You must be of sound mind at the time you make the changes. If you are not, your new will or codicil may be successfully challenged in court.

Cancelling your will

There are five ways to cancel your will, or parts of your will. This is called revoking a will.

• If you marry, your will is no longer valid unless it says it is made as you prepare to marry that person, called being made “in contemplation” of marriage.
• If you get divorced, parts of your will are no longer valid. In Nova Scotia, divorce revokes the parts of a will that give a gift to a spouse, provide a benefit to a spouse or appointing the spouse as executor. There are exceptions: the will, a separation agreement, or marriage contract may say that these parts of your will are not affected by a divorce.
• You can make a written document saying that you want to cancel the will. You must sign it and have it witnessed in the same way as a will. For example, in one case a bank manager had a person’s will. The person became ill and signed a letter to the bank manager that said: “Please destroy the will I have already made out.” The person had signed the letter in front of witnesses, and the letter cancelled the will.
• You can make a new will. Any new will that is properly executed cancels a previous will. A codicil cancels clauses in a will.
• You can destroy the will or ask another person to destroy it in your presence. If your will is accidentally destroyed (for example, by a fire in which you die) a copy of the will can be used as long as there was no intention to cancel your will.

Is a will made outside Nova Scotia valid in Nova Scotia?

Your will may be valid if it was made outside Nova Scotia. You should have it checked by a lawyer to see that it meets the requirements of Nova Scotia law.

Where can I get more information on making a will?

You can call the Legal Information Society of Nova Scotia’s Legal Information Line, 902.455.3135 or, toll-free, 1.800.665.9779. You can also email your legal information questions.

The Legal Information Society of Nova Scotia can also refer you to a lawyer who does wills. More information is at www.legalinfo.org/how-lisns-can-help/i-need-a-lawyer.

Where can I get more information on probate?

The Probate Courts in Nova Scotia make information available to the public. You may get copies of the forms by visiting or by calling your local Probate Court office or by going to the Courts of Nova Scotia website, courts.ns.ca.

The information available from the Probate Court includes:

• The Probate Act - Questions and answers
• Dealing with an estate
• Grant of probate - checklist
• Grant of administration with will annexed - checklist
• Grant of administration - checklist
• Passing the accounts of an estate in Probate Court - checklist
• How to prepare the final account of the personal representative

Finding a lawyer who does wills

The Legal Information Society of Nova Scotia's Lawyer Referral Service can refer you to a lawyer who does wills. More information is at www.legalinfo.org/how-lisns-can-help/i-need-a-lawyer. Or, go here for other ways to find a lawyer in private practice who does wills and estates work.

What is a power of attorney?

A power of attorney is a legal document that lets you give another person authority to act in financial or property matters on your behalf. If you let someone act on your behalf, you might hear someone call you the donor or grantor. The person receiving the authority is called the attorney (even if they aren’t a lawyer). Giving someone a power of attorney does not limit you from acting on your own behalf. You still have control of your financial affairs and are free to deal with your property, money, and investments. 

To give someone else authority to make personal or health care decisions for you, you need a personal directive. See the section on Health Care Treatment and Consent or go to the Nova Scotia Department of Justice’s website on personal directives.

You don’t have to give someone else power of attorney. But it is a way for you to choose who will act for you if you can’t act for yourself.

Why would I need a power of attorney?

Here are some reasons to write a power of attorney:

• You are too sick to deal with your financial affairs and you need someone to take over control for you until you get better.
• You can’t get around very well and you want to let someone deposit and withdraw money from your bank account.
• You are travelling or working away from home and you want to allow someone to deal with your financial affairs while you are away.
• You have an illness that will lessen your ability to make decisions or to move around in the future, and you want to plan for that.
• You want to make arrangements now while you are well and competent to prepare for the unexpected. Competent means able to make important decisions for yourself. If something like an accident should limit your ability to deal with your affairs or to get around, you will be ready.

Powers of attorney for person registered under the Indian Act who ordinarily live on reserve

The federal Indian Act has rules for making powers of attorney that apply to status Indians who ordinarily live on reserve.   The Indian Act does not apply if you are status Indian living off-reserve or a non-status Indian living on-reserve - provincial laws apply instead.

If you are status Indian who ordinarily lives on a reserve you can get information about doing a power of attorney from:

• Indigenous and Northern Affairs Canada (Indigenous Services Canada) online at www.aadnc-aandc.gc.ca, under ‘Benefits and Rights’, then ‘Estates’
• a lawyer who does wills and estates law, and who knows about Aboriginal law and the rules that apply to power of attorney for status Indians who live on reserve
• the Confederacy of Mainland Mi’kmaq (CMM) has a Mi’kmaw Wills and Estates series which includes:
  1. Book One: How to Write a Will 
  2. Book Two: How to Settle an Estate 
  3. Book Three: How to Write a Power of Attorney and Personal Directive
  4. Mi’kmaq Wills and Estates & Matrimonial Real Property 

Copies are located in band offices of CMM’s member bands or can be found online at cmmns.com/program/wills-estates/

If I give someone my power of attorney, can I still act on my own behalf?

Yes. If you give someone your power of attorney, you can still make your own decisions until you become unable to do so.

How much authority can I give in a power of attorney?

You choose what powers to give your attorney. There are two levels of responsibility:

• A general power of attorney gives your full authority to your attorney. There are no limits on what they can do on your behalf.
• A specific power of attorney says exactly what authority you allow your attorneyto do on your behalf. It limits what your attorney can do.

A specific power of attorney is most often used when you need someone to sell a piece of land for you or to deal with a bank account for you. It is important that a specific power of attorney include all steps involved in the work you want done. For example, a power of attorney to buy a piece of land should include the power to sign all the needed documents and it may be time-limited for a period of weeks or months.

What duties does my attorney have?

Your attorney has a duty to take good care as they carry out what you have allowed them to do. This includes the duty to:

• stay within the authority you have given,
• use reasonable care and skill,
• act in your best interests,
• not profit personally from what is done for you (although you can specify how the attorney is compensated for assisting you).

Do I need a lawyer to write a power of attorney?

No. The law does not say that a lawyer must write your power of attorney, but it is wise to at least speak to a lawyer about it. If you don’t have a lawyer, here are some ways to find one, or call our Lawyer Referral Service, at 1-800-665-9779 (toll free) or 902-455-3135 in the Halifax area.

You can write your power of attorney yourself. You can fill in a blank form; you can buy one from a store or download one from the internet. There are also books and kits available for powers of attorney.

A power of attorney is an important legal document and it must be worded carefully to make sure that it says what you want. If a lawyer makes a mistake, insurance can cover the situation. Among other things, a lawyer can:

• make sure the power of attorney is clear about how much authority you give to your attorney,
• make sure that your power of attorney covers all the steps needed to do what you want done,
• make sure the power of attorney meets all the legal requirements,
• tell you about standard clauses to provide for unexpected events,
• tell you about options for wording the power of attorney,
• tell you about things you can do now to make it easier for your attorney to deal with your affairs later,
• answer any questions you might have,
• help you understand better what can happen when you give someone power of attorney,
• give proof that you had legal capacity when you made your power of attorney,
• give proof that you made your power of attorney by your own free choice, and free of undue influence.

If you decide to write your own power of attorney, ask a lawyer look it over. Ask them  to make sure that it meets all the legal requirements and allows your attorney to do what you want.

Very important: Get advice from a lawyer if you want a specific or a springing power of attorney. These documents must be written carefully to meet each person’s unique needs, and a lawyer should check them.

What does it cost for a lawyer to do a power of attorney?

Lawyers charge a fee based upon the amount you want them to do. The fee depends on how complex the work is. Lawyers often charge a flat fee for doing a power of attorney. You should discuss fees with the lawyer before you decide to hire them.

Can I buy a power of attorney form?

You may be able to find a form online. Some office supply stores may have forms for general powers of attorney. There are also books that provide examples of forms.

There is no standard form for a specific power of attorney because the wording will depend on what powers you want to give your attorney. You or your lawyer will have to draw up the form to fit your needs. You will usually need a special form from your bank if you want your attorney to access your bank account.

How much will it cost?

A general power of attorney form from an office supply store costs a few dollars. Banks do not charge a separate fee for their power of attorney forms.

The cost for lawyers’ fees will depend on how long it takes to draw up the power of attorney and the number of times the lawyer meets with you. You should ask the lawyer about their fees. Most lawyers charge a flat fee for doing a power of attorney. 

Other costs:

• Your attorney may have small expenses, such as for postage and telephone.
• If your attorney is a lawyer and you ask them to do legal work like buying property or writing a will, they may charge for doing these tasks.
• The Public Trustee and trust companies charge fees for acting as your attorney. Fees are based on the value of your estate and your income.

A friend or relative is not entitled to a fee unless there is an agreement between the two of you for payment. In that case, you should include the terms of payment in the power of attorney document. Often a family member or a friend acts as an attorney without payment.

What are the general legal requirements for a power of attorney?

The legal requirements are:

Adult: In Nova Scotia, you must be aged 19 or older to:

• give a power of attorney, or
• act as attorney under a power of attorney.

Capacity:  You must be mentally competent to give someone power of attorney. This is also called having legal capacity. It means you:

• know that you are making a power of attorney and 
• understand what it means to give a power of attorney.

If you become mentally incompetent after you have made your power of attorney, the power of attorney is no longer valid unless it is an enduring power of attorney. Mentally incompetent means you can no longer make your own decisions.

Mental competence to make a power of attorney can be an issue if a person’s ability to think clearly is affected by illness, drugs, or pain. You should make your power of attorney or enduring power of attorney while you are in good health so that no one questions your mental competence.

The person who is named as an attorney under a power of attorney must understand what it is to receive a power of attorney.

Written:  Your power of attorney must be in writing.

Signed:  You, the donor, must sign your power of attorney. It is wise to put it under “seal.” Sealing means that someone has attached a red seal to the document opposite the donor’s signature. You can buy seals at an office supply store. If you want your attorney to buy or sell property for you, the power of attorney must have a seal on it. 

Often, another person witnesses the donor’s signature. This is not required for an ordinary power of attorney but people often do it.

An enduring power of attorney is different: it must be witnessed. The witness must be at least 19 years old and cannot be the attorney or the attorney’s spouse.

If you cannot sign your name, you can place your mark on the power of attorney. A mark is a cross or other symbol used in place of a signature. A witness should sign a statement saying that you made the mark. This statement is called an affidavit of execution. 

If you have a visual impairment, you must ask someone to read the contents of the document to you before you sign it or place your mark. A witness must sign an affidavit that someone read the document to you and that you understood it before you sign it or place your mark on it.

What is an affidavit of execution?

An affidavit of execution is a witness's statement that they saw you sign the power of attorney, that you signed in front of the witness, and that you were of sound mind and of the age of majority (at least 19 years old in Nova Scotia) when you signed it. The witness signs the affidavit of execution.

An affidavit of execution can be made any time after you sign your power of attorney. It is best to do it right after the power of attorney is signed. 

People often do an affidavit of execution for a power of attorney, even though the law does not generally say you must do one. However, if you want your attorney to buy or sell land for you, the Land Registration Office will require an affidavit of execution.

A Commissioner of Oaths or a notary public must confirm that the affidavit of execution is true. All lawyers are Commissioners of Oaths. But you can also find notaries public and Commissioners of Oaths in the Yellow Pages, or go here for ways to find one.

For more information on recording your power of attorney at the Land Registration Office, see these sections:

• Can a power of attorney be used to buy and sell land? 
• Do powers of attorney have to be recorded or registered in Nova Scotia?

Is there anything else I should include in a power of attorney?

The following are not legal requirements, but they are a good idea:

• Put the date on the document.
• Put your initial and page number on each page so pages cannot be replaced or removed.
• Someone who is a competent adult and is not the attorney or the attorney’s spouse should witness your signature. That person should sign their name on the document. The witness does not need to know what is in your power of attorney.
• Arrange for the witness to swear an affidavit of execution. 

Who can be my attorney?

Anyone who is at least 19 years old and who is mentally competent can be your attorney. You should choose someone you trust and who will carry out your wishes.

If you do not wish to give a relative or friend power of attorney, you can appoint a lawyer or trust company. Also, depending on the circumstances, the Nova Scotia Public Trustee might agree to act as your attorney. The Public Trustee is a government office that manages the affairs of some people who cannot do it for themselves. Contact the Nova Scotia Public Trustee for more information.

Does the person receiving the power of attorney have to sign the document?

No. The attorney does not have to sign the power of attorney document. But if they need access to any bank account, they will have to sign documents at each bank, trust company, and credit union where you have an account that the attorney will use, as the financial institution will generally need your attorney's signature for their files. 

Can my attorney use my bank account?

Yes, if you include that authority in your power of attorney document.  Banks, trust companies and credit unions generally have their own power of attorney forms which they will want you or your attorney to sign.  These forms can only be used to deal with that particular financial institution.

Carefully read any form you are given before you sign it.  It may limit an attorney's powers to deal with particular accounts or it may include power to deal with all accounts, investments and safe deposit boxes held by you.  It may affect any existing power of attorney you have.

You can talk with the financial institution's staff about your needs.  If you do not understand all of the terms, you can ask them or ask a lawyer.

Can the person I choose as my attorney decide not to act?

Yes. It is important to discuss your wishes with the person you plan to name as your attorney.  Before you write your power of attorney, ask the person you want as your attorney if they will take on the job. If they refuse, you should appoint someone else. You should also ask someone to act as a back-up attorney.

If you do not name a back-up attorney and your attorney tells you they no longer want to act as your attorney, your power of attorney will automatically be cancelled.

Can my attorney do my taxes?

Yes, but usually only if you include a special clause in your power of attorney that allows them to deal directly with the Canada Revenue Agency on your behalf.

Can a power of attorney be used to buy and sell land?

Yes, if you give your attorney that authority in your power of attorney. If you want your attorney to deal with land, your power of attorney must be recorded at the Land Registration Office where the land is located before the sale or purchase takes place. The power of attorney must be signed under seal and have an affidavit of execution.

You can find phone numbers for Land Registration Offices in the blue Government pages of the phone book under Land Registration or visit the Access Nova Scotia website for locations. There is a fee to record documents, although fees change from time to time. Contact staff at the Land Registration Office for information on fees for recording documents.

Land transactions done with a power of attorney are not valid until the power is registered.

What is an enduring power of attorney?

An enduring power of attorney is a special power of attorney document. It clearly says that your attorney’s power to act for you continues even if you can no longer make decisions for yourself. This is called becoming mentally incompetent or losing legal capacity.

An ordinary power of attorney would no longer be valid and could not be used if you became mentally incompetent or could no longer make important decisions. In that case, you might need a representative under the Adult Capacity and Decision-making Act to handle your affairs. 

For more information on adult representation, go to the Nova Scotia Public Trustee’s website. 

Should I have an ordinary power of attorney or an enduring one?

The kind of power of attorney document you have depends upon your needs. Every situation is different, so you should speak with a lawyer about what is best for you in your situation.

An ordinary power of attorney gives someone authority to take specific action for you at specific times. For example, people in the military may allow someone to handle their banking while they work outside of Canada. Enduring powers of attorney are more common as they allow someone to act for you when you cannot act for yourself.

If you want the person named in your power of attorney to be able to continue to act if you become mentally incompetent, then you will need an enduring power of attorney.

If you already have an ordinary power of attorney, talk with your lawyer about whether you should replace it with an enduring power of attorney.

What is a springing power of attorney?

A springing power of attorney is a special power of attorney document that says what event will make it “spring” into effect. That event could be if the donor loses capacity to make their own property and financial decisions. Another example is if a business owner needs someone else to run their business for a short time. 

Many people have powers of attorney that are both springing and enduring. This means the power of attorney comes into effect when the donor cannot make their own decisions, and it continues until the donor can make decisions again.

What can happen if I do not have an enduring power of attorney?

If you become mentally incompetent and cannot take care of your affairs, a relative or friend may ask a court to appoint a representative to handle your affairs. This might not be the person that you would have chosen.

For more information on adult representation, see the section on Representative Decision-making for Adults or go to the Nova Scotia Public Trustee’s information on Adult Capacity and Decision-making Act.

When is it too late to give a power of attorney?

It is too late to give a power of attorney when you can no longer make important decisions for yourself. For example, this can be an issue if you have progressive dementia. In this situation, you might need a medical opinion about your capacity to give a power of attorney. If you do not have capacity, a family member or other caring person might apply to court to be named as your representative decision-maker under the Adult Capacity and Decision-making Act.

Are there special requirements for an enduring power of attorney?

Yes. An enduring power of attorney has the legal requirements of an ordinary power of attorney, plus two more:

• Someone who is competent, at least 19 years old, and who is not the attorney or the attorney’s spouse must witness that you signed it.
• It must say that it will still be in effect if the donor loses capacity to make important property and financial decisions.

These special requirements are set out in the Nova Scotia Powers of Attorney Act.

What happens if I become mentally incompetent?

If you become mentally incompetent, or unable to make important decisions, the power of attorney becomes invalid unless you have an enduring power of attorney. An enduring power of attorney says that you wish the power to continue even if you become mentally incompetent or lose legal capacity to manage your own affairs.

If you do not have an enduring power of attorney and you become mentally incompetent, the court may name a representative under the Adult Capacity and Decision-making Act to handle your affairs.

Can my attorney consent to medical treatment for me?

Only if you give them the authority to do so. The Nova Scotia Personal Directives Act lets you choose a person to consent to medical treatment for you if you can no longer give consent. That person is called your delegate. 

Allowing someone to give medical consent for you is usually done in a separate document called a personal directive. If you included consent to medical treatment in a power of attorney prepared before April 1, 2010, it is still valid. 

See the section on Health Care Treatment and Consent for more information. You can also learn more about personal directives and see a sample form at novascotia.ca/just/pda/.

If you decide to include medical consent, your power of attorney must be in writing, and you and a witness must sign it. The witness cannot be your delegate or your delegate’s spouse. Both you and your delegate must be at least 19 years old and must be mentally competent.

Where should I keep my power of attorney?

You should put your power of attorney document in a safe place. A fire-proof location is the best place. Make sure you tell your attorney where the document is stored so that they can find it if it is needed.

If you want your attorney to start using the power immediately, give it to them. Keep a copy for yourself in a safe place. Give a copy to your bank, credit union or trust company, and to any other parties that your attorney will deal with for you. Keep a list of the businesses and people who have copies of your power of attorney in case you have to make any changes.

If you have a power of attorney that may not be used for a while, perhaps never, do one of these things:

• Put it in a safe place that your attorney can access quickly, if they need to, and tell them where it is.
• Leave it with another person you trust, such as a lawyer, and give clear instructions about when to release it. Remember, though, that this person could die or move away.
• Give it to your attorney to keep in a safe place until it is needed.

Do not put your power of attorney in a safe deposit box that is in your name only, as your attorney may not be able to get access to it quickly. It may be many years before your power of attorney is needed, if it ever is needed.

As time passes, keep track of where you are keeping your power of attorney. Tell the people in your life who need to know about your power of attorney where to get it when it is needed.

How does a power of attorney end?

A power of attorney can end in any one of the ways listed below. 

Very important: You can end a power of attorney at any time and should do so if your attorney is abusing the power you gave them.

You should always name a back-up attorney in your power of attorney. If your first choice is not able to act for any reason, your back-up attorney takes over authority to act on your behalf and your power of attorney document stays in effect.

If you do not name a back-up attorney, your power of attorney document will have no legal effect after your attorney: 

• dies, 
• becomes incompetent, or
• gives you notice that they no longer want to act for you.

You should give written notice when a power of attorney is cancelled or when an attorney’s authority ends. Any person or business that deals with the attorney will think the power of attorney is valid unless they are told it is not.

Notice by the donor: You can end a power of attorney by telling the attorney in writing. This is called giving notice. The notice must be in writing and dated, and you must sign it.

If you cancel your power of attorney, you should also do the things below:

• Write to all the people and businesses who deal with the attorney. Tell them that the power of attorney has been cancelled. Keep a copy of the letters.
• Ask everyone who has a copy of the document to return it to you. Banks and some other organizations may need to keep a copy of the document for their files.
• Contact the Land Registration Office if the power of attorney is registered there. Find out what needs to be done to put notice of your cancellation on the record. You do not need to do this if the power of attorney was for a specific time period that has ended or for a task that has been completed. 

Notice by the attorney: Your attorney can give you notice that they no longer want to act as attorney. You should write to the bank and others and tell them that the power has been cancelled. Keep a copy of these letters. Ask your attorney to return the power of attorney document to you.

Mental incompetence: If you cannot make important decisions for yourself, your power of attorney ends automatically unless it is an enduring power of attorney.

If your attorney becomes mentally incompetent and you have not named a back-up attorney, your power of attorney ends automatically. This is the case whether it is an ordinary or an enduring power of attorney.

When the Public Trustee is acting for someone who becomes mentally incompetent, the Public Trustee will continue to act for that person.

Death: When you die, the power of attorney ends. 

If the attorney dies, the power of attorney ends unless you have named a back-up attorney. 

If the Public Trustee is acting for a person who dies without a will naming an executor, they will continue to act until a court appoints someone to administer the estate. For more information, contact the Nova Scotia Public Trustee.

Bankruptcy: If you become bankrupt, your power of attorney ends and a licensed insolvency trustee takes over all your financial affairs. A licensed insolvency trustee is a licensed person who manages the affairs of a bankrupt person.

If your attorney becomes bankrupt, your power of attorney is not automatically cancelled. It is only cancelled if the bankruptcy makes your attorney unfit to carry out their duties.

If your attorney is unfit to carry out their duties, your back-up attorney takes over and acts on your behalf, and your power of attorney document remains in effect.

Time or task: A power of attorney can be for a specific time or task. When the time or task is complete, the power of attorney ends. 

For example, you might give someone specific power of attorney to sell a house. The attorney’s authority under that document would end when the house is sold.

In another example, you might give a general power of attorney while you are away on vacation. The attorney’s authority under that document ends when you return.

If a specific power of attorney allows the attorney to act over time, the power continues until it is cancelled in one of the ways listed above.

A general power of attorney may continue indefinitely or it may be for a specific time. 

Do powers of attorney have to be recorded or registered in Nova Scotia?

A power of attorney only has to be registered when it gives authority to deal with land. Then it must be recorded or registered at the Land Registration Office where the land is located.

What are the risks of giving someone my power of attorney?

Power of attorney gives someone else power to act for you. Banks and other financial institutions rely on the written power of attorney document. If you give your attorney power to withdraw money from your bank accounts, to deal with your property, or to buy and sell investments on your behalf, the bank will not usually contact you to see if you approve of what the attorney is doing.

Most people who are named in a power of attorney are honest. They try to do a good job and help you as they said they would and live up to their obligations.

There is a risk though that the attorney could abuse that power because theybelieve that they know what is best for you, or they want to get money or property for themselves.

What can I do to prevent misuse of a power of attorney?

Here are some things you can to help stop someone from abusing a power of attorney:

• Choose carefully. Choose an attorney you can trust who will respect your wishes.
• Continue to pay attention to your affairs. Ask your attorney questions. Get regular statements and updates. Do not give up all control to that person, although keep in mind that a power of attorney typically takes immediate effect.
• Require your attorney to give you, or someone else if you become incompetent,  regular updates on how they are managing your affairs.
• If you have a lot of savings, property, or investments, think about appointing a lawyer or a trust company to act on your behalf. Look carefully into the costs of this before you make a decision.
• Give a specific rather than a general power of attorney, unless you find that you must give your full authority. For example, if you need your attorney to deal with just one bank account, then give them power to do only that.
• Check your bank statements and cancelled cheques carefully. You can put a limit on the amount that your attorney can withdraw from your accounts. If the attorney wants to withdraw more than that amount, then you would have to tell your bank that you agree.
• If you have investments, arrange for your investment dealer to keep you informed about all dealings. You can also arrange for them to inform a third person if you become incompetent.
• Make a list of your property, jewellery, savings, furnishings, and investments. Keep it up to date. Give a copy to the person named in your power of attorney and to at least one other person you trust.
• Tell your banks, financial institutions, and investment dealers to tell you about any transactions over a set limit.

What can I do if my attorney misuses the power of attorney?

Below is a list of things you can do if your attorney misuses the power of attorney. What you do will depend on your situation and on your relationship with your attorney:

• At the very least, talk over your concerns with a lawyer or someone else you trust.
• Ask your attorney to account for how they have managed your affairs.
• You can cancel their authority under your power of attorney and use your back-up attorney. If you did not name a back-up attorney, you could cancel the power of attorney.
• It is a criminal offence to misuse a power of attorney. If your attorney is using your property or money for their own benefit without your consent, you should talk with a lawyer and the police.
• If you have an enduring power of attorney and later become incompetent, your attorney can be required to report on how they have managed your property. The application would be made to the Supreme Court of Nova Scotia by someone who believes that your attorney abused their power. The court could order the attorney to account to the Public Trustee. The court can also remove the attorney and appoint someone else to manage your affairs.
• An attorney can be ordered to give reports to the Nova Scotia Public Trustee Office. 

Under the Adult Protection Act, if an attorney or representativeis neglecting the adult’s property or dealing with it in a way that is not in their best interests, or if an adult needs protection, a judge may inform the Public Trustee. The Public Trustee also looks into complaints about a representative under the Adult Capacity and Decision-making Act. 

Is a power of attorney made outside of Nova Scotia valid here?

The legal requirements of powers of attorney change from province to province, and outside of Canada. Your power of attorney may be valid if it was made outside Nova Scotia. To find out for sure, ask a Nova Scotia lawyer to see if it meets the requirements of the law here.

Is my power of attorney valid outside of Nova Scotia?

If your attorney may need to use the power of attorney outside Nova Scotia, check with a lawyer to see if you should write another power of attorney for that province or country. For example, say you and your spouse spend the winter in Florida and you have given each other power of attorney. You would need to ask a lawyer whether your power of attorney meetsthe laws of Florida.  And, you may need to have the power of attorney document authenticated for use outside Nova Scotia.

Where can I get more information on making a power of attorney?

• Contact a lawyer in private practice who works on wills and estates. Here are some ways to find a lawyer.
• Read “What every older Canadian should know about Powers of Attorney and Joint Bank Accounts,” a federal and provincial government publication.