Guide to making your Will

You can use the app if:

• you live in Nova Scotia
• you are 19 or older, or younger if you are married
• you are naming an executor who is in Canada, and ideally in Nova Scotia
• you have a small or very modest amount of property
• you have a straightforward personal and financial situation
• you are mentally competent
• you are making a will voluntarily without pressure or influence from anyone else.

The app is not right for you if your situation is on the What the Wills App Does Not Cover list.  Read the list first before you use the app.  For example, you should not use the app:

• if there are any concerns about your ability to think clearly and make decisions
• if you feel pressured to write a will because someone is insisting that you do one
• if you have status under the Indian Act and live on a First Nation community (on 'reserve').  Provincial laws about wills do not apply on reserve.  The Confederacy of Mainland Mi’kmaq has information for you on its website (cmmns.com)
• if you need to set up complicated financial arrangements, like a trust with special conditions
• if you want to leave something to a charity
• if your personal situation is complicated.  Some examples are:
  • you are separated from a legally married spouse, and have a common law spouse you live with right now
  • you do not have a close relationship with your spouse or child and want to leave them out of your will
  • you have a 'blended' family—you have children from a previous relationship, and/or your spouse or partner does

Your will lets you name someone to carry out your last wishes. This person is called your executor.

In Nova Scotia you must be at least 19 years old to make a will, unless you are married.

You must be mentally competent to make a will.  This is 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.

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 (prescribed or otherwise)
• 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. More than one of those things may apply to a situation.

If you lose capacity after you have made your will, the will is still valid.

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.  The lawyer may need to talk with your doctor.  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.

You must get a lawyer's help:

• if there are any concerns about your ability to think clearly, make decisions, and to make a will
• if you do not understand the key information about making a will
• if you cannot identify your options and understand the effect your choices may have
• if you feel pressured to write a will because someone is insisting that you do one.

If you do not 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.

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 will be paid to the government only 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 legally 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.

Someone will need to 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 law of intestacy 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.

The wills app makes a basic will.  The app lets you:

• name someone to carry out your last wishes, called your "executor"
• say who you want to take care of any pets
• list some specific gifts and people you want to get them
• say who you want to get the rest of your estate when you die.

In the will you can name your main or primary executor. The app lets you name up to two co-executors if you wish, although there are advantages to naming one alone. You can also name a back-up executor.

You can make specific gifts to beneficiaries. Gifts can be specific things, like jewellery, a car, books, your furniture. Or, they can be gifts of cash. The app lets you leave up to 10 gifts to different people. The will created by the app will list these gifts.

You can also say who you want to take care of your pets, if you have any.

Finally, you can say who gets what is left of your estate after your funeral expenses, debts, taxes and costs of managing your estate have been paid, and any specific gifts have been given. This is called the residue.

When you make a new will, you cancel any earlier wills you had. Lawyers say the will is revoked. If you already have a will and use this app to make a new one, it will revoke any earlier wills you made.

A will can be revoked in other ways, too. There is more information about how a will can be revoked later in this guide under 'Cancelling Your Will'.

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, such as a separation agreement, shareholder agreement, court order, deed where you own property jointly with someone other than your spouse, 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.

It is really important to talk to a lawyer in a number of situations, including if your situation is on the list of What the Wills App Does Not Cover. 

Talk to a lawyer:

• if you are a substitute decision maker for a person with special needs
• if you want to set up a trust with special conditions
• if you have land and do not have clear title to it.  The Land Titles Initiative helps residents in the communities of North Preston, East Preston, Cherry Brook/Lake Loon, Lincolnville and Sunnyville get clear title to their land at no cost
• if you want to name three or more co-executors to carry out your wishes.  Co-executors may disagree and this can cause significant problems for your estate
• if you want to name an executor or beneficiary who lives outside Nova Scotia, especially in the United States
• if you want to leave something to charity
• if you have a complicated financial situation
• if you have a complicated personal situation. Some examples are:
  • you are separating from your spouse or partner
  • you are separated from a legally married spouse, and have a common law spouse you live with right now
  • you do not have a close relationship with your spouse or child and want to leave them out of your will
  • you have a blended family—you have children from a previous relationship and/or your spouse or partner does.

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 help with problems
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.

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.

• the full name of your spouse, partner, or person you plan to marry, if this applies to you
• the full name of your executor or executors, including back-up executor if you name one
• the full names and ages of your children if you have any
• a description of any specific gifts you want to give after you die
• information about your pets, if you have any
• the full name of any person you’re asking to take care of your pets
• the full names of people you’re giving gifts to in your will.

But the person making their will might need help using the app. If you’re helping them, they must still make every decision themselves. And you must pass on to them the information in this guide, in the app, and in the instructions.

• 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 car(s).

Pets are also assets, as the law thinks of animals as personal property. The app gives you the option to say who you want to take care of your pets, if you have any.

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

Your executor:

• must be 19 years of age or older
• must be mentally competent
• should live in Canada to avoid tax issues, and ideally in Nova Scotia; and
• can also be a beneficiary.

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.

You must see a lawyer if you want someone other than your executor to take care of a gift you’ve made to a child under 19 in your will, as the app does not allow you to name someone else to do that.

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.

Being an executor can be a big job, so choose someone who is organized and who knows when they need to get professional advice. Talk with the person you want to be your executor before you name them in your will. Ask if they are willing to do this for you. Just because an executor is named in your will does not mean that they are required to act on your behalf.

Make sure the person you choose has the time and the ability to carry out the many duties of an executor.  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.
• Your spouse, a friend, family member, or beneficiary may be able to do a good job as executor. Many people choose their spouse or main beneficiary as executor.
• Think about choosing someone who is likely to outlive you.
• 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.

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.

If you don’t have someone suitable to be your executor, you may be able to name a trust company, a professional advisor (lawyer, accountant, sometimes an investment advisor), or the Nova Scotia Public Trustee. You should talk with them first; they do not have to accept this role and some professional advisors cannot or simply won't.  You must check first with the Office of the Public Trustee if you want them to act as your executor.

Any executor you name may charge your estate to do the work.

• Specific gifts, where you list items or cash amounts to go to specific people; 
• Pets, if you have pets and want to name someone to look after them; and
• Residue, which means saying 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.

• your Will
• these  pdf Instructions for Signing Your Will(163 KB)
• the fillable pdf Affidavit of Execution that applies to you.  Step 4 below tells you which version of the affidavit to use.  Fill it out, then print it.
  
  • pdf Affidavit—Version 1(67 KB)
  • pdf Affidavit—Version 2 (93 KB)

• Keep your will and the affidavit of execution where they will not be damaged by things like pets, mold, a fire, or flooding. A safe place to store your will is a fire-proof metal box like a filing cabinet or cash box.
• Tell your executor exactly where your will is.  Only an original will is valid in Nova Scotia and in most other places, so it is very important for your executor to have the original, paper and ink will when you die.
• Keep an up-to-date, detailed record of your assets (including accounts, insurance policies, investments) and debts.  Keep this information with your will or where your executor can find it easily.
• Keep an up-to-date, detailed list with the contact information for all of the beneficiaries you have named in your will, especially if the primary or back-up executor you name does not know everyone personally.  Keep this information with your will or where your executor can find it easily.
• If you have minor children, see a lawyer to make your Child Guardian Appointment, or use the free, basic Child Guardian Appointment form on the Legal Information Society's website at www.legalinfo.org/wills/child-guardianship to name a guardian(s) for your minor child or children. 
• Look at your will every few years or any time you have a major event in your life, like a marriage, new common law relationship, separation, divorce, the birth of a child, a move outside Nova Scotia, or the death of a beneficiary. Make a new will if you need to change anything.
• Regularly review any property you own jointly with someone else, and assets with a named beneficiary, such as pension plans, life insurance, RRSPs, RRIFs, TFSA, to make sure they still do what you want them to.
• If you decide that you want to change your will, you can cancel (revoke) it by destroying it or by making a new will. If you make a new will, destroy the old one so there is no confusion about which version should be used.  See 'Cancelling your will' below for more information.
• Keep a current list of your personal electronic and digital assets. Examples are your email accounts, digital music and photographs, social media accounts. Tell your executor what you want to happen with those assets.

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 any previous wills. The most recent will, if 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.  Tools such as this wills app take care of that concern. 

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

• If you get married, your will is cancelled unless it says it is made as you prepare to marry that person and that you want it to stay valid after the marriage. This is 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 former spouse, provide a benefit to a former spouse or appoint the former 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. A codicil just 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.  However, a judge would need to give consent for the copy to be used, as the legal starting point (presumption) is that only an original will may be used in Nova Scotia for probate and estate administration.

Burial instructions are not legally binding. They are considered an expression of your wishes. And, your executor might not read your will until after your funeral and burial, so if you put burial instructions in your will your executor might not see your instructions before the funeral and burial happen.

For these reasons the wills app does not let you add burial instructions to your will.

But you should talk with your executor and family members to make sure they know what you want.  Your executor is legally responsible to make your funeral arrangements, so this discussion is especially important if your executor is not a family member or there are different expectations among family members about how best to honour you. You can learn more about Planning Your Funeral here.

Finding a lawyer who does wills
It is a good idea to speak with a lawyer who focuses their work on estate planning, including wills, and if possible, a lawyer who has a Trust and Estate Practitioner or “TEP” designation.  Go here for information about ways to a find a lawyer who does wills and estates work.

• Content editing and Will drafting: Jessica Lyle, TEP
• Content writer: Wendy Turner
• Plain language: Nicole Watkins-Campbell
• IT: Jesse Williams
• Other contributors and reviewers:  Dianna Burns, Sarah Burton, Jillian Gallant, Lauren Grant, Jonathan Hooper, Ilana Luther, Meghan Recker, Nicole Slaunwhite 

Some content was adapted, with permission, from Public Legal Education Association of Canada members and we thank them for their support.