Wills/Codicils
When attending to the execution of a will/codicil a lawyer must ensure:
- The client has capacity, is free of undue influence, and has reviewed, understood, and approved the document (see Capacity Standard);1
- The will/codicil is signed by the client at the end of the document;2
- The client (or another individual at the client’s direction and in the presence of the client) signs in the presence of two witnesses who are both present at the time of signing;3
- The witnesses attest and subscribe the will/codicil also in the presence of the client;4
- The witnesses are not a beneficiary named in the document or the spouse of a beneficiary named in the document.5
In circumstances where the lawyer cannot be personally present at the time of execution of the document, the lawyer must provide the client with written instructions on how to properly execute the document and take steps to review the executed document to ensure compliance with the formal requirements.6
Power of Attorney
When attending to the execution of a power of attorney a lawyer must ensure:
- The client is capable of understanding and appreciating the nature and effects of granting a power of attorney;7
- The power of attorney is signed by the client and dated;8
- The client (or another individual at the client’s direction and in the presence of the client) signs in the presence of two witnesses who are both present at the time of signing;9
- The witnesses are of the age of majority and are not the attorney or the spouse, registered domestic partner, common-law partner or a child of the attorney.10
Personal Directive
When attending to the execution of a personal directive a lawyer must ensure:
- The client has capacity to sign a personal directive;11
- The personal directive is signed by the client and dated;12
- The client (or another individual at the client’s direction and in the presence of the client) signs in the presence of at least one witness who is present at the time of signing;13
- The witness is someone other than the named delegate, the spouse of the delegate, the person who signed on behalf of the client, or the spouse of the person who signed on behalf of the client.14
Footnotes
1.Vout v. Hay, 1995 CanLII 105 (SCC), [1995] 2 SCR 876
2. Wills Act –s. 6(1)(a)
3. Wills Act – s.6(1)(b)
4. Wills Act – s.6(1)(c)
5. Wills Act – s.12
6. Whittingham v. Crease & Company, 1978 CanLII 1930 (BCSC); Ross v. Caunters, [1979] 3 All E.R. 580
7. Powers of Attorney Act – s. 2A(2)
8. Powers of Attorney Act – s. 3(1)(i) and (ii)
9. Powers of Attorney Act – s.3(1)(d)
10. Powers of Attorney Act – s.3(1)(d)
11. Personal Directives Act – s. 3(1)
12. Personal Directives Act – s. 3(2)
13. Personal Directives Act – s.3(2)
14. Personal Directives Act – s.3(3)
15. Wills Act, s.6(2)
16. Wills Act, s.8A
Practice Notes
These are guiding principles to assist with meeting the Standard.
When attending to the execution of documents a lawyer should:
1. Ensure the document is dated and each page is initialed by the witnesses and the client unless the client has limitations which would render this difficult.
2. Ensure any handwritten alterations that may have been made at the time of signing are initialed by the client and the witnesses.
3. Ensure the document is on letter sized paper as per the Civil Procedure Rules and the pages are numbered.
4. Meet with the client alone.
5. Ensure the document reflects the client’s wishes and instructions.
6. If the client is not signing on their own, the attestation clause should state that it is done in the client’s presence and at the client’s request and also, if the client is unable to read, that the will was read to the client and that the client appeared to understand it.
Example for a Will:
SIGNED by the Testator, *, who is blind, as his Last Will and Testament, after the Will had first been read over to the Testator in our presence and it appeared to be understood and approved by him, in the presence of us, both present at the same time, who at his request, in his presence and in the presence of each other have hereunto subscribed our names as witnesses.
7. Ensure the subscribing witnesses complete an Affidavit of Execution at the time of signing a will.
8. It is recommended that lawyers make and retain detailed notes pertaining to the circumstances of execution of documents.
9. Following the execution of these documents a lawyer should advise the client to review their documents on a regular basis and caution against making alterations that do not meet the above formal requirements.
Nova Scotia does recognize holograph wills and directs that a will is valid if it is wholly in the testator’s own handwriting and signed by the testator. Further, where a court is satisfied that a writing embodies the testamentary intentions of the deceased, it can order that the writing is valid and effective as a will even though it may not meet all of the formal requirements set out above.