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Making a Will
Bryan G. Embree
Bryan G. Embree
Bryan joined Cobb & Jones LLP in 2005 and practiced law in the areas of civil litigation, including corporate and commercial litigation, employment law and administrative law, and matrimonial litigation from 2005 - 2010.

August 2010-Making a Will is a potentially tricky business. One of the goals in Will making is to provide a clear, deliberate or fixed and final intention about how property, and even possibly children, will be dealt with on the death of the Testator (the person making the Will).

There are a host of potential problems in making a valid Will including, for example, that the Testator might not have sufficient assets to satisfy bequests made in a Will at the time of his and her death. This potential abatement issue can be avoided by proper wording in a Will that contemplates this possibility and describes how that problem will be dealt with if it should occur. Another potential problem is that lapse can occur where a beneficiary predeceases the Testator. While there are �anti-lapse provisions in the Succession Law Reform Act which basically direct that the deceaseds beneficiarys relatives, spouse or children, will receive the gift in this circumstance, that might not be the true wish of the Testator and directions should be provided in a Will to deal with lapse of it should occur.

There are formal rules for executing a Will is to ensure that fraud does not occur. For example, in Ontario, a Will other than a holographic Will (written in the Testators own handwriting) must be in writing and signed by the Testator at the end in the presence of two witnesses who must also sign the Will in the presence of the Testator and in the presence of each other. The witnesses should not be beneficiaries or a spouse of a beneficiary. If a Will is not properly executed it could be invalidated.

While it is possible to make a valid holographic Will which is written in the Testators own handwriting and signed by him or her, a common problem is that some people purchase bookstore Wills and complete sections of that Will in their own handwriting. A valid holographic Will must be written entirely in the handwriting of the Testator and so a mixed Will that contains some pre-typed text as well as handwritten insertions may be deemed invalid, if challenged, not to mention all of the other potential problems associated with an improperly conceived Will such as abatement or lapse referred to above.

It is always best to have your Will completed by a lawyer who knows all the rules of proper execution of Wills, and about the pitfalls that are avoidable in a properly written document.

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