What makes a Will valid in the Yukon?

Understanding

This article is part of a broader series covering the provinces and territories 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 and territorial level, with each province or territory having its own wills statute.

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

The statute for the Yukon territory is the Wills Act, R.S.Y. 2002, c. 230.

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 the Yukon.

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 and have mental capacity in order to make a will.

The age limitation coincides with general limitations on the competency of minors to deal with property. The requirement of mental capacity reflects the need that the intent a person expresses regarding their property be lucid, informed, and meaningful.

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 a member of the Canadian military, a member of the Royal Canadian Mounted Police, or a sailor at sea.

4 (1) A person may make a valid will if, at the time the will is made, the person (a) is 19 years of age or older; and (b) has the mental capacity to make a will.

(2) ... a person who is under 19 years of age may make a valid will if (a) the person (i) is a member of a regular force as defined in the National Defence Act (Canada), (ii) is a member of another component of the Canadian Forces and is, at the time of the making of the will, placed on active service under the National Defence Act (Canada), (iii) is a member of the Royal Canadian Mounted Police, or (iv) is a mariner at sea or in the course of a voyage; and (b) the person has the mental capacity to make a will.

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

5 (1) ... a will is not valid unless

(a) it is in writing;

(b) it is signed at the end or foot thereof by the testator or on the testator’s behalf by some other person in the testator’s presence and by the testator’s direction;

(c) the signature ... is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(d) at least two of the witnesses attest and 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 in 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. 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.

Witness Requirements - Age, Mental Capacity & Substitute Signing

A witness must be an adult and have mental capacity. A substitute signer cannot also be a witness.

5 (1.01) A person who signs a will on the testator’s behalf ... is not eligible to be a witness of that signature ... .

(1.02) A witness ... (a) must be 19 years of age or older; and (b) must have the mental capacity to be a witness.

Witnessing Exceptions

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

A will that is entirely in the will-maker's handwriting (as opposed to machine-typed, or handwritten by another person) and that they sign does not require witnesses to be valid. This is known as a "holograph" will.

A will by a member of the Canadian military, a member of the Royal Canadian Mounted Police, or a sailor at sea does not require witnesses to be valid. This is understandable for practical reasons which policy recognizes.

5 (2) A holograph will, wholly in the handwriting of the testator and signed by the testator, may be validly made, without any requirements as to the presence of or attestation by any witness.

(3) A will in writing and signed by the testator or on the testator’s behalf by some other person in the testator’s presence or by the testator’s direction may be validly made by or on behalf of a testator who is a person described in subsection 4(2), without any requirements as to the presence of or attestation by any witness.

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.

11 (1) No ... alteration made in a will after its execution is valid ... unless the alteration is executed in accordance with the provisions ... respecting the execution of a will.

(2) ... the will with such an alteration ... shall be held to be duly executed if the signature ... of the testator (or the person signing on behalf of the testator) and of the witnesses subscribing to the alteration are made in the margin or in some part of the will opposite or near to the alteration or at the foot, end of, or opposite to a memorandum referring to the alteration and writing in some other part of the will ... .

Foreign

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

25 (3) A will ... shall, so far as it relates to [personal] property, be held to be well made ... if it is made ... in accordance with the law...

(a) of the place where the testator was domiciled when the will was made;

(b) of the place where the will was made; or

(c) of the place where the testator had their 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.

30 The ... Court may, on application, order that a writing is valid as a will ... even if the writing was not made in accordance with th[e rules of execution], if the ... Court is satisfied ... that the writing sets out the testamentary intentions of the testator and was intended by the testator to be their will ... .

31 The ... Court may, on application, order that a writing, marking or obliteration is valid as an alteration ... of a will, even if the writing, marking or obliteration was not made in accordance with th[e rules of execution], if the ... Court is satisfied ... that the writing, marking or obliteration reflects the testamentary intentions of the testator and was intended by the testator to be an alteration ... of their will.

32 (1) The ... Court may, on application (a) order that a will be rectified by adding or deleting characters, words or provisions [under certain conditions of accident or misunderstanding]; ... .

(2) Subsection (1) applies to the omission of the testator’s signature only if the ... Court is satisfied ... that the testator (a) intended to sign the writing but omitted to do so by pure mistake or inadvertence; and (b) intended to give effect to the writing as the testator’s will.

Witness & Substitute Signer Requirements - Conflicts of Interest

Prohibitions

On an otherwise valid will, a witness or a witness' spouse or partner 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.

9 (2) If a person attests the execution of a will and the person or their then spouse[ or partner] is by that will given any [gift], other than ... payment of debts, ... unless it is a will that is sufficiently attested without the attestation of the person or is one in which no attestation is necessary, the [gift] is, so far only as concerns the person or the spouse[ or partner] of the person or persons claiming under either of them, void.

In the same way, a substitute signer or a substitute signer's spouse or partner 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.

9.01 (1) If a person signs a will on a testator’s behalf and the person or their then spouse[ or partner] is by that will given a [gift], other than ... payment of debts, the [gift] is, so far only as concerns the person or the spouse[ or partner] of the person or persons claiming under either of them, void.

Rationale

The rule that a witness, a substitute signer, or their spouse or partner 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 and substitute signers 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.

Remedy

A will that by mere mistake and with no undue influence had a witness, a substitute signer, or their spouse or partner as a beneficiary and thus had their gift voided may have such gift retroactively "cured" as valid, but only upon a lengthy, costly, uncertain application to Court.

33 The ... Court may, on application, order that any [gift] given to a witness or to a person signing a will on behalf of a testator that would otherwise be void under subsection 9(2) or section 9.01... is not void if the ... Court is satisfied ...

(a) that the testator intended to make the [gift] to the person despite knowing that the person was a witness to the execution of the will or was a person signing the will on behalf of the testator; and

(b) that neither the person nor the spouse[ or partner] of the person exercised any improper or undue influence over the testator.

Extended Summary

A will shall be valid in the Yukon where:

• If the will was made outside of the Yukon or by someone from outside of the Yukon, it satisfies the requirements of the place where it was made or the will-maker was domiciled.
• 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 a member of the Canadian military, a member of the Royal Canadian Mounted Police, or a sailor at sea,
    • 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 member of the Canadian military, a member of the Royal Canadian Mounted Police, nor a sailor at sea,
    • in the simultaneous presence of two (2) or more witnesses who at the time are nineteen (19) years of age or older and have the mental capacity to be witnesses and are not the substitute signer, in-person, 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.
• 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, the substitute signer, or the then spouse or partner of either of them. If they are then their gift is void against them or anyone claiming under them unless they and their spouse or partner are accepted as not having exercised undue influence upon the will-maker by the Court upon application.

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 soldier, deputy, and sailor.
• 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.
• 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, Yukon-local, self-signed, 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 the Yukon or by someone from outside of the Yukon shall be valid if it satisfies the requirements of the place where it or the will-maker is from. Otherwise, a will made in the Yukon shall be fully valid if it is
   1. a typed paper document, singularly computer-printed, with no subsequent additions or alterations any time in handwriting or otherwise;
   2. signed at the end, on the last page, by the will-maker, who then is nineteen (19) years of age or older and has mental capacity and is not unduly influenced, in the simultaneous physical presence of two (2) witnesses who then are nineteen (19) years of age or older and have mental capacity; and,
   3. signed by the said witnesses in the physical presence of the will-maker.
2. A witness or a witness' then spouse or partner 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.

There is no requirement to use a lawyer - either in preparation or in signing and witnessing. Obtaining a will through a personal wills platform or will kit is perfectly legitimate. There is no requirement of any notarization, stamp, or other special marking; the will-maker and the witness' signatures are all that's needed.

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 or partner 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.