Formalities for Wills

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Requirements to making a Valid Will

Handwritten wills (aka a “Holograph” will: If handwritten in your own writing, then only a SIGNATURE and DATE is required. A witness will not be required.

Typed-Wills: For a typed-up will to be considered valid, it must be:

  • Signed by the testator (person writing the will)
  • Witnessed by two people, who are;
    1. Not a beneficiary or partner of a beneficiary and;
    2. Were present when the testator signed the will

It is important that a beneficiary or legal spouse should not act as a witness. If they do, the gift to that beneficiary fails, unless a judge orders otherwise.

Additionally, typed-up wills require an affidavit of execution (written document signed by a witness legally promising that they witnessed the testator signing their will) when being probated (legal process approving distribution of estate).

Can I Make a Change to My Will?

Yes. These are called “codicils” and can be added to existing wills. To ensure the validity of a codicil, the same principles of making a will should be followed.

If you wish to make major changes to your will, it may make sense to fully write a new will. It is never recommended to alter your will by adding handwriting by scratching/crossing off or adding writing. It will not meet legal standards to be considered valid.

When making a new will, it is recommended revoke (cancel) your previous will. This can be achieved by specifically stating in the new will that the prior will is no longer valid. It is important to make sure that when canceling a prior will, that your new will mentions any prior terms (wishes) you had and still want to keep.

Important times to consider a will change is when an individual gets married, divorced, or separated. Getting married will no longer invalidate (cancel) a prior will as of January 1, 2022. Similarly, getting divorced or separated will not cancel a prior will. 

Where to Keep Your Will

Your original will is required for the probate process. You want to make sure you keep your will in a place that is accessible when needed but safe from damage. There are a few options where you can safely keep your original will:

  • Deposit it at Court: the court system will keep your original will safe for a fee
  • Store it with your lawyer: this option while safe, will require you to make an effort to inform those you would want to see the will once you pass with what lawyer it is being held with
  • You keep it: it is recommended if you keep it that you either store it in a personal fire-proof safe or utilize a safety deposit box at a bank

A destroyed will by the testator is considered to be revoked (cancelled) and is not valid. It is notable that you should only have one original will, therefore it is important to keep your original will in a safe place. You may keep copies in addition to the original will as well, but it is the one original will that will be needed on your death.

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