What makes a Will valid in Newfoundland and Labrador?

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 Newfoundland and Labrador is the Wills Act, R.S.N.L. 1990, c. W-10.

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 Newfoundland and Labrador.

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 seventeen (17) years of age or older in order to make a will.

The age of majority in Newfoundland and Labrador happens to be nineteen (19) years. There are general limitations on the competency of people under that age, i.e. minors, to deal with property. In contrast, when it comes to wills, the applicable age limitation is a bit more open, allowing a person to write a will for themselves earlier at seventeen (17) years.

3 A will is invalid where made by a person under the age of 17 years.

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.

2 (1) A will is invalid unless it is made in writing, and it ... is signed by the testator in the presence of at least 2 witnesses, who shall, in the presence of the testator, sign the will as witnesses... .

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".

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.

By the end of the COVID outbreak, remote witnessing of a will had become allowed.

The definition of "presence" was expanded to allow for not just witnessing in-person but witnessing by live videoconferencing for a witness who was a lawyer.

1.1 In this Act, (a) "audio-visual technology" means technology which allows a person signing a document and a person witnessing the signing of the document who are not in the physical presence of one another to see, hear and communicate with each other at all times; ...

...

2 (1.1) ... the words "in the presence of" includes attendance through the use of audio-visual technology provided that the witness (a) is a lawyer; and (b) complies with the requirements prescribed in the regulations.

(1.2) For greater certainty, where only one of the witnesses to the signing of a will is a lawyer, the words "in the presence of" do not include attendance through the use of audio-visual technology in relation to the witness that is not a lawyer.

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.

6 Where a person who certifies the execution of a will is, at the time of the execution of it, or afterwards, incompetent to be admitted as a witness to prove the execution of it, the will is not on that account invalid.

Witnessing Exception

The rule that there be witnesses is relaxed in a certain case.

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.

2 (1) A will is invalid unless it is made in writing, and it is either in the handwriting of the testator, and signed by the testator, or, where not so written and signed, [follows the previously stated rules of witnessing].

Alterations

Any subsequent alteration made in a will must itself be properly executed underneath it, to the side of it, in the closest margin to it, or otherwise nearby it, or at the end of or nearby a memo referring to it.

12 (1) No ... alteration, made in a will after the execution of it, is valid ... unless the alteration is made and executed in the manner required by th[e rules of execution].

(2) A will with an alteration is considered to be executed where the signature of the testator, or the testator's signature and that of the witnesses, is made in the margin or on some part of the will opposite or near to the alteration, or at the foot or end of or opposite to a memorandum referring to the alteration, and written at the end or some other part of the will or attached to it.

Foreign

Newfoundland and Labrador will accept as valid a will from outside of Newfoundland and Labrador or by someone from outside of Newfoundland and Labrador if the will satisfies the requirements of the place where it or the will-maker is from.

24 (1) ... a will of an interest in [personality property]... is valid ... if ... it complied with the internal law of the place where

(a) the will was made;

(b) the testator was then living;

(c) the testator then had the testator’s habitual residence; or

(d) the testator then was a national if there was in that place one body of law governing the wills of nationals.

Witness Requirements - Conflicts of Interest

Prohibitions

On an otherwise valid will, a witness should not be a beneficiary under the will receiving any gift. If they are then their gift is void.

7 (2) Where a will cannot be sufficiently proved without the evidence of a beneficiary, the beneficiary shall be admitted as a witness to prove the execution or the validity or invalidity of the will, and in that case the [gift] in the beneficiary’s favour is void.

Rationale

The rule that a witness should not be a beneficiary does not invalidate a will fully upon not being properly observed but does invalidate it partially as to their 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 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 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 Newfoundland and Labrador where:

• If the will was made outside of Newfoundland and Labrador or by someone from outside of Newfoundland and Labrador, it satisfies the requirements of the place where it was made or the will-maker was domiciled, resident, or a national of.
• If not, the will is
  • drafted in writing;
  • made by a will-maker who at the time
    • is seventeen (17) years of age or older,
    • has the mental capacity to do so, and
    • is not unduly influenced;
  • signed by the will-maker; and,
  • if the will is not entirely in the will-maker's handwriting,
    • in the simultaneous presence of two (2) or more witnesses, in-person, or optionally over live videoconferencing for a witness who is a lawyer following regulation, so signed by the will-maker, and
    • signed by the said witnesses in the presence of the will-maker.

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. If they are then their gift is void.

Streamlining

This deep dive has shown the full web of the rules, with exceptions and alternatives 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.

• 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.

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

Essential Summary

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

1. A will made outside of Newfoundland and Labrador or by someone from outside of Newfoundland and Labrador shall be valid if it satisfies the requirements of the place where it or the will-maker is from. Otherwise, a will made in Newfoundland and Labrador shall be fully valid if it is
   1. a written document, 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 seventeen (17) years of age or older and has mental capacity and is not unduly influenced, in the simultaneous physical presence of two (2) witnesses; and,
   3. signed by the said witnesses in the physical presence of the will-maker.
2. A witness 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.