Legal Ease, Sept. 18

Making arrangements for your family and loved ones on your death is very sensible. The law allows you to let your wishes be known by making a will.

A will is a legal document that sets out what is going to happen to your property upon your death. A will must be in writing and does not take effect until the person making the will dies — the person making the will is called the “testator.”

The will also sets out who is going to look after things when you die – that person is normally called the trustee or executor – and choosing that person can be a difficult question.

You want to pick someone trustworthy and reliable without insulting people in your family who might have expected to become the trustee or executor. You can have more than one person take the job.

Some people think you only make a will when you are close to dying — but that’s not the case at all.

I often have young people who have a new child come and make wills — and they are decades away from dying. If you have children, you can say who you want to look after them when you die, but any such direction in a will is subject to review by the courts.

Children aren’t property and the court always has the power to make sure their best interests are protected.

You can also set out the type of funeral arrangements you want in a will; the risk is that the funeral will be held before the will is looked at so it’s probably better to let your family know what type of funeral you want.

You do not have to do anything formal and it’s probably good enough to tell your family informally that you want, for example, a Catholic service or whatever you prefer.

The usual way to make a will is to prepare a detailed description of what you want to have happen to your property after death and then see a lawyer who can put that into a formal document.

To put it simply, the will has to be signed by the testator and witnessed by two adults, neither of whom gets anything under the will.

Handwritten wills, as long as they are entirely handwritten and signed by the testator, are valid in Nunavut.

You do not need witnesses for this type of will, so the handwritten will is helpful if someone is ill and needs to do something quickly before they can see a lawyer.

It is best to try to see a lawyer, as making a will can be complicated.

A will can be changed at any time prior to death. It can be done by writing a new valid will or by destroying the old one. Probably the best way to revoke a will is to make a new one that explicitly revokes all existing wills.

If you want to keep the old will, but just add to it or change it, you can do so but the procedure is a little complicated and you should see a lawyer to make sure you do not accidentally revoke the old will.

Marriage will also revoke a will; so, if you have a will and get married at a later point in time, you will need to write a new will.

However, if you have a will and later get divorced, the old will is still valid, but it will be read as if your former spouse was deceased.

Separating is not the same as getting a divorce so if you have split up but not gotten a divorce yet, you may want to consider making a new will.

James Morton is a lawyer practicing in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.