Will Template: New Brunswick Edition

A will is a legal document that outlines a person's wishes for their property and the care of their minor children after their death. In New Brunswick, 65% of adults don't have a will, and that number jumps to 74% when including adults whose will is not up-to-date. While it is not mandatory to have a will, it is important as it prevents the government from deciding how a deceased person's property will be distributed. A will must contain a clause appointing an executor and a clause dealing with the property of the testator, including a residue clause. It must be signed by the testator and two witnesses who do not benefit from the will and are not married to a beneficiary. New Brunswick law previously required that individuals meet in the physical presence of witnesses, and in certain cases, lawyers, to execute a valid will. However, due to the COVID-19 pandemic, the New Brunswick Wills Act was amended to allow for remote witnessing of wills until December 31, 2022.

Holograph wills

A holographic will, or olographic testament, is a will and testament that is handwritten and signed by the testator (the person whose will it is). Holographic wills are not accepted in all jurisdictions. In some places, they are only accepted if created in emergency situations, such as when the testator is alone, trapped, and near death. In other places, they are only accepted for members of the armed services or sailors at sea.

In New Brunswick, a holograph will is a valid option. However, it is recommended that holograph wills are only used in emergencies. Holograph wills are valid if they are completely handwritten and signed by the testator. They do not require witnesses or formalities. However, it is important to note that holograph wills may lead to problems in probate court. To avoid fraud, most places require that a holograph will contains the maker's signature. However, the courts will have to determine whether the will was signed in the testator's signature and by the testator's hand. This can be a difficult process, especially if the handwriting is vague or illegible.

As with any will, a testator to a holograph will must be explicit about named beneficiaries and the receipt of property or assets. The testator may also detail the circumstances for recipients to meet to receive named assets. It is recommended that the testator explains why specific property or assets are left to certain beneficiaries, as this indicates that the testator was of sound mind. Being of sound mind is a crucial provision in determining the validity of a holograph will.

In addition to the potential challenges of probate court, there are other risks and downsides to using a holograph will. For example, a holograph will may not contain the testator's final wishes. The testator may have written the will as a draft or forgotten to update it. These questions may be brought up in court.

Letters Probate

The Probate Court will grant Letters Probate when a will has been approved by the Court as the valid and last will of a deceased testator (the person who made the will). The Letters Probate serve as proof of the executor's authority to deal with the testator's estate. For example, the executor may need Letters Probate to recover money owed to the testator or to transfer certain assets according to the instructions in the will. Additionally, Letters Probate may be necessary if the executor expects someone to contest their right to act as executor.

The person requesting Letters Probate can apply to the office of the Clerk of the Probate Court in the judicial district where the testator resided at the time of their death or in a district where the testator owned property. The fees for Letters Probate are set by the Probate Court Act and its Regulations and are based on the value of the estate. The general fee schedule is $5.00 per $1,000 of the estate being administered. If a lawyer prepares and submits the application, their fee will be separate from the probate fee.

It is important to note that if a person dies without a valid will, they are considered to have died "intestate". In such cases, the Probate Court will appoint an administrator to manage the estate, and Letters of Administration can be obtained, with fees following the same schedule as for Letters Probate.

Living wills

A living will, also known as advance medical directives, is a legal document that outlines your wishes for medical care and treatment should you become incapacitated and unable to communicate your preferences. It provides detailed written instructions to medical professionals and family members on the type and extent of medical care you wish to receive.

In New Brunswick, there is no specific legislation for living wills. However, under the Infirm Persons Act, individuals can create a Power of Attorney for personal care, which can include provisions similar to those in a living will. This allows someone else to make property, financial, personal care, and other decisions on your behalf if you are unable to do so.

When creating a living will, you can specify whether you wish to be sustained by artificial life support if you are terminally ill, for example. This ensures that your wishes are respected and carried out, even if you cannot express them at the time.

Although New Brunswick does not have specific laws regarding living wills, consulting a lawyer can help ensure your living will is valid and complies with any relevant provincial legislation, such as the Infirm Persons Act.

Power of Attorney

A Power of Attorney (POA) is a legal document that gives another person the right to make decisions and represent you. The person you choose to grant this power to is known as the attorney or agent, and you are the grantor or donor.

There are two types of POA: a Power of Attorney for Property and a Power of Attorney for Personal Care. The former allows the attorney to make decisions about your property and financial affairs, while the latter gives them the ability to make decisions about your health and personal care.

In New Brunswick, the legislation governing POA is the Enduring Powers of Attorney Act, which came into effect on July 1, 2020. This Act outlines the requirements for creating a POA, including the necessary roles and titles. For example, the person acting on your behalf in a POA is referred to as an attorney, and monitors can be appointed to oversee their work.

To create a POA for Property, you must work with a lawyer, who will sign the document and provide a witness statement. A POA for Personal Care can be created with the help of a lawyer or by using government forms. This document does not require a lawyer's signature, but it must be witnessed by either a lawyer or two witnesses who are at least 19 years old and are not your attorney for personal care, spouse, common-law partner, or child of your attorney for personal care.

It is important to note that granting a POA does not give the attorney the authority to change your will. Additionally, while residents of New Brunswick are not required to have a POA, it is recommended to avoid the costly and time-consuming process of the court appointing a legal guardian.

Witness requirements

Number of Witnesses

In New Brunswick, two witnesses are required by law to be present when the testator signs the will. This ensures the validity and enforceability of the document.

Role of Witnesses

The primary role of witnesses is to verify the legitimacy of the will. They confirm that the testator, or the person making the will, signed and executed the will in their presence and appeared to be of sound mind. Witnesses attest to the testator's mental capacity to understand the implications of the document.

Witness Credibility and Trustworthiness

It is imperative to choose credible and trustworthy individuals as witnesses. They should be able to testify in court about the execution of the will if needed. Additionally, witnesses should not be named as beneficiaries in the will to avoid any potential conflicts of interest.

Witness Age Requirements

While New Brunswick does not specify a minimum age for witnesses, it is important to consider the general guidelines. Many states require witnesses to be at least 18 years old, ensuring they are legally considered adults and can provide credible testimony.

Witness Availability

Witnesses should be individuals who are likely to be available and willing to testify in court if necessary. Choosing someone who is out of the country or inaccessible may require a notarized signature, adding complexity to the process.

Witness Impartiality

To maintain impartiality and avoid conflicts of interest, witnesses should not be individuals named in the will, such as the executor, guardian, or beneficiaries. Additionally, family members who stand to inherit from the estate, like the spouse, children, or grandchildren, should be avoided as witnesses.

Witness Competency

Witnesses must be competent individuals, meaning they are of sound mind and capable of understanding the implications of the document they are witnessing. An individual who is likely to pass away before the testator, such as a parent, may not be an ideal choice.

In summary, when selecting witnesses for a will in New Brunswick, it is essential to choose credible, trustworthy, and impartial individuals who can attest to the testator's sound mind and the validity of the will. By meeting these witness requirements, you can ensure the enforceability and legality of your will.

Frequently asked questions