What makes a Will valid in New Brunswick?

Understanding

This article is part of a broader series covering the provinces of Canada.

Those who are unfamilar with wills and who have never had one often typically wonder:

• If I want a will, how am I supposed to get it prepared?
• Is a lawyer required?
• Is there an age requirement? Is there a property requirement?
• How do I make it "final"? Do I just sign it?
• Where do I sign it? Do I have to sign it at a special location?
• Do I need to sign it on just one page or on every page?
• Whom do I sign it with?
• Do I need witnesses? Who is allowed to be a witness?
• Does it need to be stamped or sealed?

Basis

The law regarding wills in Canada is set at the provincial level, with each province having its own wills statute.

These statutes are broadly uniform with only rather minor differences in strictness.

The statute for the province of New Brunswick is the Wills Act, R.S.N.B. 1973, c. W-9.

We will directly examine the sections of it that give answers to these questions and the overall question of what makes a valid will in New Brunswick.

As we proceed, know that

• ellipses - ... - represent parts omitted intentionally due to be being considered extraneous,
• square brackets - [] - represent a paraphrasing of original parts for brevity, and
• the word "testator" means "will-maker" or "person whose will it is".

We will take an in-depth look at all of the details, however trivial, for interest's sake.

After the deep dive, we end with a streamlined, essential summary and a bottom line list of actionable steps for having a valid will.

Age & Mental Capacity

A person must be an adult in order to make a will. This age limitation coincides with general limitations on the competency of minors to deal with property.

There are some obscure exceptions to the requirement to be an adult. A will made by someone who is a minor may still be valid if they are married, have been married, are a member of the Canadian military, or are a sailor.

8 (1) A will made by a person who is under the age of nineteen years is not valid unless at the time of making the will the person

(a) is or has been married,

(b) is a member of a component of the Canadian Forces (i) that is referred to in the National Defence Act... as a regular force, or (ii) while placed on active service under the National Defence Act... or

(c) is a mariner or seaman.

Additionally, apart from statute, under the law developed by judges, a person must have mental capacity and be from free from undue influence in order to make a will.

The requirement of mental capacity reflects the need that the intent a person expresses regarding their property be lucid, informed, and meaningful. Their intent also need be free and independent and not unduly influenced and overborne by the will of another person.

Execution

The conventional form of proper execution - that is, proper signing and witnessing - of a will is that it must be drafted in writing, signed at the end by the will-maker in the simultaneous presence of two (2) witnesses, and then signed by the said witnesses in the presence of the will-maker.

3 A will is valid only when it is in writing.

4 ... a will is not valid unless,

(a) at its end it is signed by the testator or signed in his name by some other person in his presence and by his direction,

(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the time, and

(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.

The requirement of two witnesses to the signing serves to ensure that it did happen and was not a forgery. The requirement provides a baseline assurance; one remains free to challenge in Court a signing where the witnessing was suspect.

There is no requirement of a lawyer's involvement - either in preparation or signing and witnessing. A lawyer's role has traditionally been to advise - to take instructions and draft the Will using common will templates and software.

However, now, due to the convenience of the internet, we provide direct access to the will-drafting software that a lawyer would use, cutting out the need for one.

Thus one is legally free to choose whether to complete a will through a lawyer, a traditional paper will kit, or a modern will-drafting platform such as ours.

There is no requirement of any notarization, stamp, or other special marking beyond the validation provided by the will-maker and the witness' signatures.

There is no specified minimum property requirement to write a will. A will speaks to "what the person owns at the time of their death, however much it may be".

Note that the rule that a will-maker sign their will has an alternative part. Instead of signing their will themselves as one normally would, a will-maker may direct another person to sign their will on their behalf and acknowledge it as such in front of the witnesses. An otherwise mentally capable and communicative will-maker might do such a "substitute signing" where they physically cannot grip a pen and sign for themselves due to disability or deficiency in the hands.

Remote Execution

It has normally been required that witnessing be done in-person: the will-maker and the two witnesses must be physically present together, in front of each other, for the signing event.

In 2020, during the COVID outbreak, remote witnessing of a will became allowed.

The definition of "presence" was expanded to allow for not just witnessing in-person but witnessing by live videoconferencing so long as at least one witness was a lawyer.

This may necessitate signing in "counterpart" and it was allowed - separate copies of the will for each of the will-maker and witnesses to sign their portion individually at their end could then be read together as a bundle representing a single fully signed copy.

4.1 (1) The following definition applies in this section. “electronic means of communication” means an electronic means of communication in which all persons are able to see, hear and communicate with one another in real time, to the same extent as if the persons were communicating in person in the same location. ...

(2) The requirement ... that a will signed in the name of the testator by some other person is signed in the presence of the testator may be satisfied by using an electronic means of communication.

(3) The requirement ... that two or more attesting witnesses are present at the time the testator signs the will or acknowledges the signature may be satisfied by using an electronic means of communication, provided that at least one witness is a [practising] lawyer ... .

(4) The requirement ... that two or more of the attesting witnesses subscribe the will in the presence of the testator may be satisfied by using an electronic means of communication, provided that at least one witness is a [practising] lawyer ... .

(5) If a will is executed by using an electronic means of communication authorized by this section, the requirements that a will be signed or subscribed may be satisfied by signing or subscribing the will in counterpart.

Witness Requirements - Competence

There is no explicit language that a witness be of a certain age or be competent to prove its execution. On the contrary, a will may survive and be saved against a witness who fulfills neither of these two.

11 Where a person who attested a will was at the time of its execution or afterward has become incompetent as a witness to prove its execution, the will is not on that account invalid.

Witnessing Exceptions

The rule that there be witnesses is relaxed in certain cases.

A will by a military member on active duty or a sailor at sea does not require witnesses to be valid. This is understandable for practical reasons which policy recognizes.

A will that is entirely in the will-maker's handwriting with no computer-printed portions and that they sign does not require witnesses to be valid. This is known as a "holograph" will.

5 (1) A member of the Canadian Forces while placed on active service pursuant to the National Defence Act... or a member of any other naval, land or air force while on active service, or a mariner or a seaman when at sea or in the course of a voyage, may make a will by a writing signed by him or by some other person in his presence and by his direction without any further formality or any requirement of the presence of or attestation of signature by a witness.

...

6 A testator may make a valid will wholly by his own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

Alterations

Any subsequent alteration made in a will must itself be properly signed to and witnessed underneath it, to the side of it, in the closest margin to it, or otherwise nearby it, or concluding a memo referring to it.

18 (2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or section 6, the signature of the testator, are or is made (a) in the margin or in some other part of the will opposite or near to the alteration, or (b) at the foot or end of or opposite to a memorandum referring to the alteration and written in some part of the will.

Foreign

New Brunswick will liberally accept as valid a will from outside of New Brunswick or by someone from outside of New Brunswick if the will satisfies the requirements of the place where it or the will-maker is from.

37 ... a will ... is valid ... if it is made in accordance with the law ... at the time of its making in the place where

(a) the will was made,

(b) the testator was domiciled or had his or her habitual residence when the will was made, or

(c) the testator had his or her domicile of origin.

Constructive Validity

A will, will-like document, or alteration in a will that was not made or executed properly but is otherwise genuine may be retroactively deemed as valid, but only upon a lengthy, costly, improbable application to Court.

35.1 Where a court ... is satisfied that a document or any writing on a document embodies (a) the testamentary intentions of the deceased, or (b) the intention of the deceased to ... alter ... a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will, the court may, notwithstanding that the document or writing was not executed in compliance with the [rules of execution], order that the document or writing is valid ... .

Witness Requirements - Conflicts of Interest

Prohibitions

On an otherwise valid will, a witness or a witness' spouse should not be a beneficiary under the will receiving any gift beyond a mere repayment of debts. If they are then their gift is void.

12 (1) Where a will is attested by a person to whom or to whose then spouse a [gift], except ... payment of debt, is thereby given or made, the [gift] is void so far only as it concerns the person so attesting, or his or her spouse or a person claiming under any of them... .

Rationale

The rule that a witness or their spouse should not be a beneficiary does not invalidate a will fully upon not being properly observed but does invalidate it partially as to the improper individual's gift, which might as well be just as bad and may ruin a will-maker's intended plan for their assets.

The rule is a directed safeguard against i) the scenario of malicious actors coercing or unduly influencing a person into signing, or directing and acknowledging substitute signing of, a will in front of them that has them as beneficiaries, and ii) by extension, even the scenario of malicious actors outright forging a person's signature, or without direction applying a substitute signature, on a will falsely claimed to be signed or acknowledged in front of them that has them as beneficiaries.

The rule's consequence necessitates using as witnesses independent persons who have no personal stake or role in the will and thus no incentive to fabricate or force its signing, presumptively ensuring the signing's veracity and independence.

Extended Summary

A will shall be valid in New Brunswick where:

• If the will was made outside of New Brunswick or by someone from outside of New Brunswick, it satisfies the requirements of the place where it was made or the will-maker was domiciled or resident.
• If not, the will is
  • drafted in writing;
  • made by a will-maker who at the time
    • either is nineteen (19) years of age or older or, if under nineteen years of age, is married, has been married, is a member of the Canadian military, or is a sailor,
    • has the mental capacity to do so, and
    • is not unduly influenced;
  • signed at the end by the will-maker in any case or a substitute signer in their presence and at their direction in the case where the will is not entirely in the will-maker's handwriting; and,
  • if the will is not entirely in the will-maker's handwriting and the will-maker is neither a military member on active duty nor a sailor at sea,
    • in the simultaneous presence of two (2) or more witnesses, either in-person or over live videoconferencing with at least one witness being a practising lawyer if the latter, so signed by the will-maker or acknowledged by the will-maker as having been signed by the will-maker or the substitute signer, and
    • signed by two (2) or more of the said witnesses in the presence of the will-maker, with counterparts being allowed if over live videoconferencing.
• If not properly meeting any set of formal requirements, the will is accepted as genuine by the Court upon application.

A subsequent alteration in a will shall be valid as per the above except that where there is a requirement of execution there be one made nearby it or concluding an internal memo referring to it.

A beneficiary under an otherwise valid will should not be a witness or the spouse of a witness. If they are then their gift is void against them or anyone claiming under them.

Streamlining

This deep dive has shown the full web of the rules, replete with exceptions, alternatives, and remedies to an underlying conventional standard of will execution.

These exceptions and the like are obscure. They are interesting tidbits of information to know - but for academic purposes.

• At Your Final Will we recommend all young adults to prepare a will, though that does not extend to recommending a minor be mindful of it and contemplate reliance on antiquated categories of child solider, sailor, and bride.
• While the alternative of substitute signing is available at law it is not something that we make provision for for the iota it might apply to. Wills are signed by their makers per the normal course.
• Remote witnessing was made a qualified, technical accommodation under the social distancing mandates of COVID (2020-2021), and that is all that it was good for. Signing your will is done in-person, by having your witnesses over to be with you, in the traditional, straightforward way it has always been.
• While a fully self-handwritten will requiring no witnesses sounds like a convenience, it is completely unconventional and is worthless as to its contents for not having been prepared by a credible source.
• While the law provides for valid alterations, they should never be made. There is no shortage of cases of shoddy, hasty, or improper alterations being held invalid and of no effect, often even invalidating the will beyond the alteration itself. It is never worth it. This also applies to a handwritten addition made to a printed will before it is executed; unlike with the printed body, it later may not be certain whether the addition was present at the original execution or was made afterwards improperly, without its own execution. Therefore, overall, one should never make handwritten changes to a will. All intentions should be printed in, and where intentions need an update, one should make a new will through a provider of their choice.
• Curative court applications exist for defective executions but with straightforward instructions both clearly given and understood, they will never be.

Your Final Will does not deal in these exceptions and provides the conventional or standard form of will - machine-generated, New Brunswick-local, self-signed, doubly-witnessed, in-person, fully-compliant.

Essential Summary

With those obscurities and fallbacks excluded, we are left with the following distillation:

1. A will made outside of New Brunswick or by someone from outside of New Brunswick shall be valid if it satisfies the requirements of the place where it or the will-maker is from. Otherwise, a will made in New Brunswick shall be fully valid if it is
   1. singularly computer-printed, with no subsequent additions or alterations any time in handwriting or otherwise;
   2. signed at the end by the will-maker, who is then nineteen (19) years of age or older and has mental capacity and is not unduly influenced, in the simultaneous presence of two (2) witnesses; and,
   3. signed by the said witnesses in the presence of the will-maker.
2. A witness or a witness' spouse should not be someone who is a beneficiary under the will. If they are then their gift is void under a presumption of undue influence.

Bottom Line

Here is the summary translated into actionable steps to having a valid will:

1. Obtain a will with us at Your Final Will by clicking Start for Free. The purchased package contains a set of instruction manuals that set out how to sign in the manner that follows.
2. Think of two (2) witnesses. They should not be anybody whom you've included in your will, and their spouse should not be anybody whom you've included in your will. Good candidates would be someone like a friend, or a neighbour, or a co-worker.
3. Contact them and arrange a date and time for them to come to you in-person to witness your will.
4. On that date, print your will from your computer and have it ready. Do not make any additions or changes to it.
5. Invite your witnesses in. Give everyone a blue pen.
6. Turn to the last page of the will.
7. Print the information in the "city or town", "province or territory", "month", "date", and "year" fields.
8. In front of both of your witnesses, with them watching you do it, sign in the signature field that has your name.
9. Pass the will over to your witnesses.
10. In front of you, on the same last page, watch each of them sign in a witness signature field and print their personal information in the "Name", "Address", and "Occupation" fields that are under their signature.
11. On all pages before the last, initial in the space for your initials in the bottom right corner, and have your witnesses initial in the spaces for them. Such initialing on every page before the last is not legally required but is a universal standard.

To see more from our instruction manuals click here.