How to Write a Will in Newfoundland and Labrador

The short answer

A Newfoundland and Labrador will is either signed in front of two witnesses or written wholly in your own handwriting and signed. The Wills Act, RSNL 1990, c. W-10 sets both routes out in section 2: a will is invalid unless it is made in writing and is either in the handwriting of the testator and signed by the testator, or, where it is not so written and signed, is signed by the testator in the presence of at least two witnesses, who sign the will as witnesses in the presence of the testator. You must be at least 17 years old.

This guide is process only. It states the steps the statute sets out. It gives no legal advice, and it does not advise you on what to leave to whom. If your estate is large, blended, or contested, or if you hold property outside the province, speak to a lawyer before you sign.

The two routes

The formal will

A formal will can be typed or printed. The steps are:

1. List what you own and who should get it. Write down your property, accounts, and debts, and decide who inherits each item.
2. Name an executor and a backup. The executor is the person who will carry out the will: apply for probate, pay debts, and distribute what is left. Name a backup executor as well, in case your first choice has died or cannot act by the time the will is needed. Tell both people where the signed original is kept.
3. Sign in front of two witnesses. Sign the will in the presence of at least two witnesses, who then sign the will as witnesses in your presence. If you cannot write, the will must first be read over to or by you in the presence of the witnesses.
4. Store the original safely. Keep the signed original where your executor can find it. A will that cannot be found cannot be probated.

One witness may attend through audio-visual technology, but only where that witness is a lawyer who complies with the requirements in the regulations. Where only one of the witnesses is a lawyer, the audio-visual rule does not cover the witness who is not a lawyer.

The holograph will

A holograph will must be wholly in your own handwriting from start to finish and signed by you. No witnesses are needed. A typed document with a handwritten signature is not a holograph will, so it needs the two witnesses of the formal route. Holograph wills are the riskier route: unclear wording is harder to fix after you die, and at probate the applicant must submit proof that the entire will, including the signature, is in the proper handwriting of the deceased, on Form 56.11B.

Choosing witnesses

The Act says a will is not invalid because a person who certifies its execution later becomes incompetent to be admitted as a witness to prove it. But the witness rules still matter:

• Neither witness should be a beneficiary or the spouse of one. A gift to a person who certifies the execution of the will, or to that person's spouse, is not void where the will can be proved without that person's evidence. But where the will cannot be proved without the evidence of a beneficiary, the beneficiary is admitted as a witness and the gift in that beneficiary's favour is void. The probate application must state that neither witness to the will is a beneficiary or the spouse of a beneficiary, or name the beneficiary who is such a witness.
• An executor may be a witness. Section 8 states that an executor of a will may be admitted as a witness to prove the execution of the will, or to prove its validity or invalidity.

Marriage, revocation, and changes

Marriage revokes a will. Section 9 states that a person's will is revoked by the person's marriage, except where there is a declaration in the will that it is made in contemplation of that marriage, or where the will is made in exercise of a power of appointment and the appointed property would not otherwise pass to the person's executor, administrator, or next-of-kin under the Intestate Succession Act. Review the will after marrying.

A will is not revoked by a presumption of intention from a change in circumstances. A will or codicil is revoked only by another will or codicil executed in the manner the Act requires, by some writing declaring an intention to revoke it and executed in the manner a will must be executed, or by burning, tearing, or otherwise destroying it by the testator, or by some person in the testator's presence and at the testator's direction, with the intention of revoking it.

An alteration made in a will after it is executed is valid only where the alteration is made and executed in the manner the Act requires. Do not alter the signed original by hand. For many changes, a new will is easiest; for one small change, a codicil executed the same way as the will is the usual route. A revoked will is revived only by re-execution, or by a codicil executed in the manner the Act requires that shows an intention to revive it.

Two more rules in the Act are worth knowing. A general gift of property does not lapse where the person who was to receive it dies in the testator's lifetime leaving issue who are living at the testator's death: the gift takes effect as if it had been made directly to those issue. The same rule applies to a gift to a sibling who dies leaving a child or children living at the testator's death.

Where the will is probated

When the will-maker dies, the executor applies to the Supreme Court of Newfoundland and Labrador for a grant of probate, under Rule 56 of the Probate, Administration and Guardianship Rules. The steps the Rule sets out are:

1. Post a Notice of Application. The notice is on Form 56.04A and is posted in the Registry. A notice posted on or after January 1, 2003 lapses 6 months after the date of its posting unless an application for letters is made within that time or a caveat has been entered.
2. Apply on Form 56.05A. Every application for a grant is on Form 56.05A, signed by the applicant or the applicant's solicitor, and filed with the Court. It is accompanied by an affidavit verifying the facts the applicant relies on for the grant.
3. File the inventory. The applicant files an inventory and valuation of the deceased's assets at the time of death on Form 56.10A, with an affidavit stating that the inventory is a true and correct statement of all property belonging to the deceased so far as it has been possible to ascertain.
4. Prove the will. The due execution of an attested will is proved by one of the attesting witnesses, by affidavit on Form 56.11A. For a holograph will, the applicant submits proof of execution on Form 56.11B. The will is annexed to the application and marked as an exhibit to the affidavit proving due execution.

The application must also show the deceased's marital status and occupation at the time of death, the name and address of every person entitled to share in the estate so far as known, and whether any such person is under 19. Where the deceased died testate, it must show that the deceased was of the full age of 17 at the time the will was executed (or was a volunteer, a member of the Canadian Forces on active service, or a mariner or seaman), that neither witness is a beneficiary or the spouse of one, and that the deceased did not marry after executing the will, or that the will declares it was made in contemplation of that marriage.

Priority of right to a grant of probate goes first to executors, then to residuary legatees or devisees in trust, then to residuary legatees or devisees for life, and then down the list the Rule sets out.

The probate fee

When the executor applies for a grant of letters of probate, a charge is payable to the Crown under section 4 of the Services Charges Act, SNL 1998, c. S-13.2, on the value of the estate: $60 where the value does not exceed $1,000, and $60 plus $0.60 for each additional $100 of value above $1,000. For a $100,000 estate the fee is $654; for a $500,000 estate it is $3,054. The fee is paid when the application is filed, from the estate.

What the opened pages do not state

No processing time for a grant of probate is stated, because none could be verified on an opened official page. No lawyer, notary, or will-kit cost is stated. No rule about registering, depositing, or storing a will with a court or registry is stated, because none could be verified on an opened page. No electronic-will rule is stated beyond the audio-visual witness rule in section 2. Confirm any fee or timeline with the Supreme Court registry before you rely on a figure from another source.

Related guides:

• How to Make a Will in Canada — the national guide, which states no rule for Newfoundland and Labrador.
• How to Write a Will in Nova Scotia — Nova Scotia's Wills Act route, with its own formal and holograph rules.
• How to Write a Will in New Brunswick — New Brunswick's Wills Act route, with its own formal and holograph rules.
• How to Write a Will in Ontario — Ontario's Succession Law Reform Act route.
• How to Apply for Probate in British Columbia — a probate application in another province, for comparison with Newfoundland and Labrador's Rule 56 route.
• How to Order a Death Certificate in Canada — the death certificate the executor needs as proof of death.

Sources

• House of Assembly of Newfoundland and Labrador, Wills Act, RSNL 1990, c. W-10 — section 2 on how a will is executed, section 3 on the age of 17, section 7 on gifts to witnesses, section 8 on an executor as witness, section 9 on revocation by marriage, sections 11 to 13 on revocation and revival, and sections 18 and 19 on gifts that do not lapse.
• House of Assembly of Newfoundland and Labrador, Rule 56 — Probate, Administration and Guardianship Rules — priority of right to a grant at rule 56.01, the Notice of Application on Form 56.04A at rule 56.04, the application on Form 56.05A at rule 56.05, the inventory on Form 56.10A at rule 56.10, and proof of the will on Forms 56.11A and 56.11B at rule 56.11.
• House of Assembly of Newfoundland and Labrador, Services Charges Act, SNL 1998, c. S-13.2 — section 4: the $60 charge on estates up to $1,000 and $60 plus $0.60 for each additional $100 above $1,000.