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Debra
Debra, Lawyer
Category: Canada Law
Satisfied Customers: 101005
Experience:  Lawyer
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I currently live in the Netherlands and wish to make a will

Customer Question

I currently live in the Netherlands and wish to make a will that is valid in the Canadian jurisdiction, pertaining specifically and exclusively to my assets in Canada. Can this will be signed by Dutch witnesses and subsequently be notarized by a Dutch civil law notary?
Submitted: 1 year ago.
Category: Canada Law
Expert:  Debra replied 1 year ago.

What province are your assets in?

Customer: replied 1 year ago.
My investments are in BC. I also have an account with PC Financial, which is a virtual bank so not sure what province that would be. I maintain an address in Alberta. No other assets.
Customer: replied 1 year ago.
Expert:  Debra replied 1 year ago.

Generally a Will will have to be probated in the jurisdiction where you live. Then what happens in most cases is the appropriate documentation and a copy of the will are presented to the court in the jurisdiction where the assets are.

It is not prudent to have a lawyer in another country draft a will that is supposed to cover all the assets in BC or the rest of Canada. The law often varies through the provinces. In fact, the law in BC is quite different in many respects from all the other provinces when it comes to estate law. For this reason it is vital in my view that you actually show the Will that you have done in your home country to an estate lawyer in BC.

You absolutely must meet the formal requirements for signing a will which generally means that the will has to be witnessed by two people but do you also need to know the law, especially in BC. If you don't adhere to the law in BC a court can change provisions in your well after you pass away.

Customer: replied 1 year ago.
Given that my legal address is in Alberta, why would I have a will drafted in BC? And surely you know that it is common for expatriates to do up one will to cover their Canadian assets and another to deal with the assets in the country in which they reside, so they don't run into jurisdictional issues?
Expert:  Debra replied 1 year ago.

I didn't say you had to have the will drawn up in BC. What I said is that because your assets are in BC you have to make sure that the will adheres to the law BC which is different and in the rest of Canada so I was suggesting that you should have Will drawn up where you live but then have a lawyer in BC reviewed it.

Customer: replied 1 year ago.
The problem is that I reside in the Netherlands. The will is simple - leaving all my assets to my two sons - but it will have to be signed here in the presence of two (Dutch) witnesses. I was thinking about a self-proving affidavit but that, too, would have to be be signed in front of a Dutch civil law notary. I'm concerned about the validity of such a document in Canada.
Expert:  Debra replied 1 year ago.

I don't know what a self proving document is but if you are giving all of your assets to your two sons and if you do not have a legally married spouse or a common-law spouse then this would work fine for BC.

Customer: replied 1 year ago.
A self-proving affidavit is a document that is attached to a will that allows a probate court to easily accept the will as the true will of the person who made it. It certifies that the witnesses and testator properly signed the will and is signed before of a notary public. The affidavit is offered in place of testimony, which avoids the delay and cost of locating witnesses at the time of probate. Have you never heard of that?
Expert:  Debra replied 1 year ago.

We don't have that in Canada.

What we have is at the time that the witnesses witness your signature they also swear affidavits that they have witnessed your signature.

Customer: replied 1 year ago.
That's exactly what I'm talking about. Signed in front of a Dutch notary, is that valid in Canada?
Expert:  Debra replied 1 year ago.

It will be recognized as valid. But you need two witnesses not just one notary.

Customer: replied 1 year ago.
That is what I needed to know. You're sure an affidavit sworn in a foreign country is valid in a Canadian jurisdiction?
Expert:  Debra replied 1 year ago.

If the affidavits are notarized they will be recognized in Canada.

Customer: replied 1 year ago.
OK thanks.
Expert:  Debra replied 1 year ago.

You are very welcome.

Take good care.