8 Tips to avoid common Nova Scotia “Do It Yourself” Will Kits mistakes

I can't count the number of times a friend or family of a deceased person came into our office with a “Do it yourself” Will that couldn't be used because something was done wrong or missing. In theory, “Do it yourself” Will kits are supposed to save you money. Unfortunately, in many cases, issues with these Wills end up causing the person left trying to manage the estate significant  time, stress, and money in legal fees to sort out the problem.

The author’s a lawyer, you think. Of course she’s going to try to talk us into paying a bunch of legal fees to have our Wills drafted. On the contrary, lawyers retained to take flawed Wills to court to resolve issues make way more money than they would for drafting a proper Will.

But, in case you don't believe me and insist on “saving money” by doing a DIY Will, Here are a few things to watch out for:

The Testator Must Sign a Nova Scotia Will to make it Valid

Not kidding, there have been documents that purport to be a Will that are not actually signed by the testator (the person who wrote the Will). To be a valid Will in Nova Scotia, as outlined in the Nova Scotia Wills Act, the testator must sign their name at the end of the document.

A Valid Nova Scotia Will Requires Two Independent Witnesses

For a Will to be valid under the Nova Scotia Wills Act,  the testator's signature must be witnessed by two witnesses.* The witnesses must be competent adults. Both witnesses must be in the same room, at the same time while witnessing the testator sign the Will. Be sure to legibly print the name of the witnesses below their signature. (*unless the entire Will is handwritten or falls under one of the exceptions for active members of the armed forces)

Neither Witness Should be a Beneficiary in a Nova Scotia Will

While a beneficiary can be a valid witness to a Will, by virtue of being a witness, they become disentitled to anything left to them in the Will. This rule, presumably, is to avoid a witness Being an undue influence on the testator.

To be valid, a Nova Scotia Will must have an “Affidavit of Execution” sworn by one of the Witnesses

An Affidavit of Execution is a sworn written statement made by one of the witnesses to the Will. They swear that on the date the Will was signed, they were present at the same time as the second Witness and the testator and both witnessed the document being signed.

Consider Waiving the Requirement for Security

Except in limited circumstances, under the Nova Scotia Probate Act, any person who wishes to act as a personal representative (ie the Executor) to administer an estate must post Security to the court in the amount of 1.5 times the value of the estate. If you do not want your executor to have this burden (which can prevent your chosen executor from administering your estate), then be sure to expressly waive this requirement in your will. 

You can’t Leave Anything to Your Pets in a Nova Scotia Will

Despite acknowledging that pets are a valuable member of a family, courts have ruled time and time again that in the eyes of the law, they are property. In the same way you can’t leave money to your couch, you can’t leave money to your pet. If you attempt to do so, the clause will likely be deemed invalid and the assets destined for your pet will become part of the residue of your estate. For more information on this topic, check out our blog, Estate Planning for your Fur Babies.

Have a Back-up plan: Name an Alternate Executor and Beneficiaries

While not technically necessary, we strongly recommend that you include alternates in your Will. You may want your mother to be your sole beneficiary, but there is always the possibility that she may die before or at the same time as you. In that circumstance, it’s helpful to have an alternate beneficiary named. If you don’t, your assets will be distributed according to the Nova Scotia Intestate Succession Act, which may or may not line up with your wishes.

Writing on Your Nova Scotia Will May invalidate Parts of It

After your Will has been signed and witnessed, it is an exceptionally bad idea to write on it. Unless you have two witnesses to your changes and each change is witnessed exactly as outlined in the Nova Scotia Wills Act you run the risk of having the clause, including the attempted changes, deemed invalid.

Problems with a Do It Yourself Will in Nova Scotia? Seek Legal Assistance

If you find yourself in the unfortunate circumstance of attempting to administer an estate in Nova Scotia that is governed by a Will with one of these or similar issues, you would be well advised to seek legal counsel to learn your options.

What do I Need to Do before I Draft a Will?

If I’ve convinced you it’s worth hiring a lawyer to help you draft your Will, check out our blog on how to prepare.

By: Dianna M. Rievaj, Founding Lawyer

Have Questions For Us?:

If you have any questions about Administering an Estate or the Probate process, you can call us at (902) 826-3070 or email us at info@highlanderlaw.ca to set up a meeting with one of our lawyers at our Tantallon law firm. You can also schedule a no commitment Issue Review Consult for $250+HST where you have the opportunity to explain your situation to a lawyer and get basic advice before deciding whether or not you'd like to retain us.

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