Wills and Estates Law

Click on a topic below to learn more.

Adult guardianship

If an adult is unable to manage their own affairs, a family will sometimes apply to the court to have a guardian appointed. A guardian has legal responsibilities and duties related to the person's finances (guardian of the estate) and personal care (guardian of the person).

Nova Scotia’s guardianship law allows the court to appoint a person to make decisions for someone who is not capable of making significant health, personal care and financial decisions on their own.

You'll find plain language information about Nova Scotia's current adult guardianship law in 'Guardianship of adults', part of 'It's in your hands: legal information for seniors and their families',

Click here to download 'Guardianship of Adults' in pdf.

UPDATE June 21 2017:

In June 2016 parts of Nova Scotia's adult guardianship law, the Incompetent Persons Act, were found by Nova Scotia's Supreme Court to be unconstitutional. At that time the Nova Scotia government was given one year to update the law. On June 13, 2017 the Supreme Court of Nova Scotia granted the Province's request for an extension of the validity of the legislation until December 28, 2017. All current guardianship orders are still valid until a new law is in place. Court applications for adult guardianship under the current Incompetent Persons Act can still be made. The Department of Justice is planning to introduce new legislation to replace the Incompetent Persons Act in the fall session of the legislature. More information about being a guardian for an adult who cannot make significant decisions on their own is available at
https://novascotia.ca/adultguardianship/guardianship-law.asp

C'est entre vos mains: information juridique pour les personnes aînées et leur famille

Ce livret, "C'est entre vos mains:  information juridique pour les personnes aînées et leur famille", a été produit dans le cadre du projet Planification juridique pour les personnes aînées du Legal Information Society of Nova Scotia. 

Le livret est disponible gratuitement et porte sur les sujets ci-dessous :

  • Les fréquentations et les nouvelles relations
  • L'escroquerie, le vol d'identité et autres fraudes
  • Les préarrangements funéraires
  • Les droits des grands-parents
  • La tutelle des adultes
  • Les soins médicaux et le consentement
  • La procuration
  • Le curateur public
  • Les testaments
  • La violence à l'égard des personnes aînées

Cliquez ici pour consulter la version en ligne du livret.

Dating & new relationships

Are you dating, moving in with a new partner, or thinking about getting remarried, perhaps following a separation, divorce or death of a spouse? 

Dating and New Relationships is a good place to start for answers to some of the questions you may have in entering a new relationship. Click here to download this information in pdf.

'Dating and New Relationships' is part of 'It's in your hands: legal information for seniors and their families.

Dealing with an estate

 

What is probate?

Probate is a legal process that establishes that a will is the valid last will of the person who died. It is also the process that governs management and distribution of an estate, whether or not there is a will. A grant of probate or administration is a document from the Probate Court that gives a personal representative legal authority to deal with the estate.

Nova Scotia’s Probate Act and regulations outline the rules for probating an estate.

What do the terms testator, intestate, executor, administrator, and personal representative mean?

A person who makes a will is called a testator.  If you die without a will, you are said to die intestate.

Nova Scotia’s Probate Act uses the term personal representative to refer to both an executor and an administrator of an estate.

An executor is a person or corporation named in a valid will to carry out the terms of that will. 

An administrator is a person appointed to look after the estate of an individual who dies without a will – that is, a person who dies intestate, or who had a will but did not appoint an executor.  There is a list in the Probate Act of people who are entitled to apply to court to administer an estate.  A surviving married spouse and adult children living in Nova Scotia are at the top of the list, followed by adults who live in Nova Scotia and who are entitled to a share of the estate under the Intestate Succession Act.  The Intestate Succession Act is the provincial law that applies when someone dies without a will.

What is an estate?

Generally, an estate is everything a person owns when he or she dies.  There are some things that would not be part of an estate.  For example, real estate owned as ‘joint tenants’ with another person, joint bank accounts, and some forms of investments (like RRSPs or RRIFs) or life insurance policies that specifically designate (name) someone as beneficiary. 

An estate may include:
•    real property, like land or a house, that was only in the name of the person who died, or that was owned as ‘tenants in common’ with others; and
•    personal property, such as money, vehicles, jewellery, artwork, clothing, household furnishings, and other personal effects.

If I am named Executor in the will, do I have to accept that responsibility?

No.  If you do not want to be Executor tell your family member or friend at the time the will is being written. 

If the person who wrote the will has died, you are still allowed to renounce, which means resign or step down, if you do not wish to act as the Executor.  To renounce you would need to contact the Probate Court and fill out a form giving up (renouncing) your right to be Executor, and confirming that you have not intermeddled in the estate.  Intermeddled basically means interfering with the estate, or doing things that show you've taken on the job of managing the estate.  If you do not wish to be Executor it is best to step down before you take any steps to deal with the estate.

You do not need any specific skills or experience to be an Executor, although it helps if you have some business knowledge.  It does require time and attention.  In some cases, for example - a will that involves a trust fund for children, it can include responsibilities that may last for years.  Also, as an executor you can be held legally responsible for any errors or omissions you make in dealing with the estate. 

In some situations, an executor’s job is straightforward and relatively simple.  In other cases it can be very complex.  It depends on the size of the estate and other factors, including:

  • how many beneficiaries there are;
  • whether the testator owned a business;
  • whether the testator had investments and debts;
  • whether someone is challenging the will;
  • whether the testator established trusts in his or her will.

As an estate’s personal representative, should I hire a lawyer?

You are not required to hire a lawyer. You are allowed to go to Probate Court and file the necessary papers without a lawyer.   However, you should consider the complexity and size of the estate when deciding if you are able to handle the interpretation and distribution yourself.  You may be held personally liable if the duties are not carried out properly. Click here for ways to find a lawyer, if you decide to hire one.

The Probate Court provides information, including check lists and forms, for personal representatives who are dealing with an estate without a lawyer. Visit courts.ns.ca and look under ‘Probate Court’ and ‘represent yourself’, or look under ‘courts’ in the government section of the telephone book for probate court locations.

What duties do I have as an estate’s personal representative?

A personal representative’s duties will vary depending on the complexity of the estate.  As an estate’s personal representative you should keep very accurate and detailed records. If you are concerned about whether you are fulfilling all your duties as personal representative, you should speak with a lawyer. 

Some of the duties you may have as an estate’s personal representative are listed below:

  • You may play a role in funeral arrangements, depending on the deceased’s wishes and those of his/her family.  You may be able to take funeral bills to the deceased’s bank and have a cheque drawn on his or her account to pay them, as long as there is enough money in the account;
  • Open an estate bank account;
  • Take steps to protect the estate’s assets.  For example, make sure assets are insured, change the locks on an apartment or house, secure valuables in a safety deposit box or other suitable storage;
  • Check that proper insurance is still in effect as some insurance policies are automatically invalidated if a residence is left vacant; 
  • Make an inventory of all estate assets and debts;
  • Ensure estate debts are paid;
  • Cancel the deceased’s charge accounts and subscriptions, and contact Canada Post to have the deceased’s mail redirected;
  • Contact the Canada Pension Plan and the deceased’s employer, in case there are benefits which should be part of the estate.  For Canada Pension, this may include a death benefit, survivor’s pension, and/or children’s benefit;
  • Apply to Probate Court for a grant of probate or administration.  Probate is generally required before a personal representative will be allowed to deal with the estate’s assets, particularly if there is land or a house that is only in the deceased person’s name, and/or if financial institutions require it.  You should inquire directly with the financial institution involved as the practices of institutions differ; 
  • Ensure that appropriate tax returns are filed, and that any income tax owed by the estate or the deceased person is paid.  Get a Clearance Certificate from the Canada Revenue Agency;
  • After estate debts are paid and a clearance certificate obtained, distribute the estate assets according to the terms of the will or Intestate Succession Act if there is no will.

The new Probate Act gives you:

  • 20 days from the date of getting a grant to notify all persons entitled to share in the  distribution of the estate;
  • 3 months from the date you get the grant to file an inventory of the estate with the Probate Court.  Items such as inexpensive personal clothing or anything jointly owned with another person don’t need to be included in the inventory.  

Before the estate can be distributed to the beneficiaries, you must advertise in the Royal Gazette that the deceased’s estate is being probated, and that creditors who may have a claim on the estate should come forward.  This advertisement period lasts for 6 months. The Royal Gazette, Part 1, is Nova Scotia's official government record of proclamations and other required legal notices. For more information about the Royal Gazette, and fees for placing an estate notice, go to  gov.ns.ca/just/regulations/rg1/index.htm or call (902) 424-8575.

The estate’s debts, including taxes, must be paid before assets are distributed to beneficiaries.  If you distribute assets before all debts are paid, you may be personally liable for those debts.

Can a Personal Representative be removed or step down?

Yes, there are circumstances under which the Probate Court may remove an estate’s personal representative and appoint another person in his or her place.  Under the new Probate Act the Court must be satisfied that a personal representative’s removal would be in the best interests of the persons interested in the estate.  The Act sets out specific reasons for removal, including if the personal representative:

1.    fails to comply with a court order;
2.    becomes insolvent or mentally incompetent;
3.    neglects to administer the estate;
4.    wastes the estate;
5.    is convicted of theft and/or fraud offences under the Criminal Code of Canada.

A Personal Representative may also apply to Probate Court on his or her own behalf to be allowed to step down from his or her duties.

Do I get paid as an estate’s personal representative?

The Probate Court may allow you a commission of up to 5% of the value of the estate, unless the will states otherwise.  This is above and beyond any out-of-pocket expenses you may have had while carrying out your responsibilities.  The amount of the commission is based on the complexity of and work involved in probating the estate, the success of the estate under your management, as well as other factors.

Where do I get the probate forms?

Probate forms are available from your local Probate Court, listed under ‘Courts’ in the government pages of the telephone book, or visit www.courts.ns.ca for probate court locations and contact information.

Where can I get more information?


For more information, contact:

Last updated: September 2017

Elder Abuse - Adult Protection Act

Elder Abuse includes both abuse and neglect. Special provisions are made for dealing with elder abuse through the Adult Protection Act.

These questions and answers provide general information only. They are not meant to replace legal advice from a lawyer.

You'll find more answers to your questions about abuse of older adults in 'It's in your hands: legal information for seniors and their families', and by clicking on the Elder Abuse Awareness image below:

Elder-abuse Elder-abuse-french

What is abuse?

Abuse can be:

  • Physical, such as punching, slapping, using physical restraints and scalding hot water.
  • Sexual, including any form of sexual activity with a person without his or her consent, such as sexual intercourse, fondling, or kissing.
  • Mental, such as treating an adult as a child, continually criticizing or belittling the adult, verbal abuse,locking the adult in a room, not allowing the adult to have visitors, and threatening to put the adult into an institution.
  • Financial, such as stealing the adult's pension cheque or savings, threatening not to visit or allow grandchildren to visit unless the adult gives money or gifts, and misusing a Power of Attorney.

What is neglect?

Neglect is the failure to provide adequate food, medical attention, shelter, or clothing to an adult. Neglect may also be self-neglect where an adult lives alone and cannot adequately care for him or herself, but refuses help.

Who is an adult in need of protection?

An adult in need of protection is someone who is 16 or older and who:

  • Has a physical disability or mental infirmity
  • Is abused or neglected in the premises where he or she lives.
  • Is unable to protect him or herself from abuse or neglect, and is refusing, delaying or unable to provide for his or her own care.

What is the Adult Protection Act?

The Adult Protection Act is a provincial law that provides protection to adults in need of protection. It does not protect against financial abuse. The Adult Protection Act places a duty on everyone to report the abuse or neglect of such an adult.

What is the Protection of Persons in Care Act?

The Protection of Persons in Care Act safeguards patients and residents in Nova Scotian hospitals, residential care facilities, nursing homes, homes for the aged or disabled persons under the Homes for Special Care Act, or group homes or residential centres under the Children and Family Services Act. Health Facility administrators and service providers (including staff and volunteers) are obliged to promptly report all allegations of abuse under this act.

Who must report abuse?

It is an offence not to report abuse and neglect of an adult in need of protection. A judge can fine you up to $1,000 for failing to report abuse, sentence you to up to a year in jail, or both.

Even if you hear about adult abuse confidentially, you must report it. For example, a doctor must report information he or she receives about abuse or neglect of an adult in need of protection. 

The identity of people who report abuse is confidential, unless that person is asked to give evidence in court.

What about Financial Abuse?

The Adult Protection Act does not protect against financial abuse. The police deal with some types of financial abuse, such as fraud or theft. If you or somebody you know is being financially abused, call the police or the Public Trustee.
The government appoints the Public Trustee to manage the financial affairs of persons who are unable to manage their own affairs. You can contact the Public Trustee at Suite 405, 5670 Spring Garden Road, Halifax, NS B3J 2T3, (902) 424-7760.

What is Power of Attorney?

Power of Attorney is a legal document that allows you to give another person power to act on your behalf. Talk to a lawyer before giving anybody Power of Attorney. Click here for more information about Power of Attorney.

How are reports of abuse handled?

The Department of Health enforces the Adult Protection Act through its Adult Protection Service , as well as the Protection of Persons in Care Act. After abuse is reported, the Adult Protection Service may visit the adult's home, and talk to those involved. In the case of the Protection of Persons in Care act, an investigator is sent to the premises. If the Adult Protection Service finds evidence that the adult is in need of protection, the worker may offer services to the adult. If there has been a criminal offence, the Adult Protection Service must report to the police. The Adult Protection Service may remove an adult from the home if there is evidence that the adult's life is in danger, if he or she is being pressured not to accept assistance, or if he or she is unable to decide whether to accept assistance.

What happens if the adult or caregiver refuses help?


Adult Protection cannot force services on competent adults who refuse service. The Adult Protection worker may ask a doctor to assess the adult's level of competency. The adult and caregiver do not have to agree to an assessment, but if they obstruct the assessment, the Adult Protection Service may ask a Family or Supreme Court judge for a court order authorizing entry into the adult's home. Usually four days notice is given. In an emergency, a judge can allow entry without notice.

Who decides whether the adult is in need of protection?

A judge decides. If there is evidence that an adult is in need of protection, the Adult Protection Service may ask a Family Court or Supreme Court judge to make an order that the adult is in need of protection. Before making an order, the judge will hold a hearing. He or she will give ten days notice of the hearing to the adult and other interested parties, such as the person suspected of abuse. If the judge decides that the adult is in need of protection, the judge may allow the Department of Health to provide the adult with services, or make a Protective Intervention Order.

What kind of services does Adult Protection provide?

The Adult Protection Service does not provide services directly. It refers the adult or the adult's family to the services that they many need and which are available in the community. Services might include arranging for home help or meals-on-wheels, or discussing with the adult alternative living arrangements, such as shared housing, seniors' apartments, and homes for special care. Services will be provided to the adult in the home when possible.

Who pays for these services?

The adult is expected to pay for these services if he or she can afford to. Some privately run services charge sliding scale fees so that users pay what they can afford. There may also be volunteer services. If the adult cannot afford to pay, the province will.

What is a Protective Intervention Order?

The judge may order a Protective Intervention Order if the adult's life or health is in danger from another person. That person is ordered to stay away from the home, and have no contact with the adult. However, he or she may still have to pay support for the adult. A judge's decision may be appealed to the Supreme Court or the Nova Scotia Court of Appeal.

Where can I get more information or report abuse?


  • If the senior is in imminent danger or needs medical assistance you need to call 911.  Call your local police if the situation is not an emergency but you suspect it might be against the law, for example - assault.  Ask to speak with someone who has been trained in senior abuse, or domestic/family violence.
  • The Department of Health has offices throughout the Province. Call toll free at 1-800-225-7225 to report abuse.

  • Contact the Public Trustee to discuss financial abuse: Suite 405, 5670 Spring Garden Road,  Halifax, NS B3J 2T3, 424-7760
  • The Department of Seniors provides assistance and information to seniors.
    Call them at 902-424-0065 or 1-800-670-0065. They also provide a Senior Abuse Line. Call 211, or 1-877-833-3377 Monday to Friday, between 8:30 a.m. and 4:30p.m.
    Note: The Department of Seniors has partnered with the 211 information and referral service. If you have a question regarding programs and services available to Nova Scotia seniors please contact 211.
  • There are Senior Safety Programs in most parts of the province.   The Seniors Safety Coordinator will visit with seniors to discuss safety and crime prevention, and to provide information and referrals.
    Contact the Department of Seniors (above) to find out where your nearest Senior Safety Program is, or visit www.gov.ns.ca/seniors/senior_Safety_Programs.asp

  • Victim Services support victims of crime by providing information, support, and assistance as a case moves through the criminal justice system. Head office: 1-888-470-0773, Dartmouth: 424-3307, Kentville: 1-800-565-1805, New Glasgow: 1-800-565-7912, Sydney: 1-800-565-0071

  • Download LISNS' Elder Abuse pamphlet in pdf.

 

You'll find more answers to your questions about abuse of older adults in 'It's in your hands: legal information for seniors and their families', and by clicking on the Elder Abuse Awareness image below:

Elder-abuse Elder-abuse-french



Created with support from the Department of Justice Canada. The Elder Abuse Awareness project was a collaborative project with the Nova Scotia Department of Seniors and the Nova Scotia Centre on Aging, Mount Saint Vincent University.

August 2015

Estate planning documents overview

Click here to view a table that gives a quick overview of common estate planning documents in Nova Scotia:

  • Power of Attorney
  • Enduring Power of Attorney
  • Medical Consent
  • Personal Directive
  • Guardianship
  • Will

 

Funeral pre-planning

Pre-planning your own funeral allows you to decide what kind of funeral you want and how much you want to spend.

Funeral Pre-planning, part of 'It's in your hands: legal information for seniors and their families', is a good place to start for information if you are thinking about planning your own funeral. Click here to download Funeral Pre-planning in pdf.

Grandparents' rights

Go to nsfamilylaw.ca to find legal information for grandparents who want to know how they may be able to reconnect or maintain contact with their grandchildren. You will also find information on nsfamilylaw.ca for grandparents who may be making an application to the court for contact time or interaction with or custody of their grandchildren.

Making a Will

Check out LISNS new Wills App! It helps you collect the basic information your lawyer will need to do your will for you. You don't need to create an account to use it. We're in the testing stage, so welcome your feedback.

Click here to watch Dalhousie University Schulich School of Law Professor Faye Woodman talk about "What You Need to Know About Wills"

pdf Here is a sample will (77 KB) , to give you an idea what a will might look like.

What is a will

A will is a legal document that lets you say what you want done with your possessions after you die. A properly signed and witnessed will becomes a binding legal document on the date you die. A will has no legal effect until you die.

A person who makes a will is called a testator. Your estate is all of the possessions you own when you die. This includes many things such as real estate, jewellery, artwork, clothing, and furniture.

A will also lets you say who you want in charge of carrying out your wishes. Whoever is in charge of carrying out your wishes is called your executor or your personal representative.

Do I have to make a will

No. The law does not say that you must make a will. However, making one should give you peace of mind and make it easier for your family or friends to handle your affairs when you die. Unfortunately, it is not unusual for family members to argue over the estate of a deceased relative who dies without leaving a will.

Why make a will

There are many reasons to make a will. A will allows you to:

  • deal with your possessions the way you want
  • name who has the authority to carry out your wishes
  • name who you want to care for any dependent children
  • provide for anyone who is dependent on you
  • provide for your companion animals (pets) or other animals you care for
  • save money and time by stating your wishes
  • have peace of mind that you have said what you want done
  • help your family and friends handle your affairs after you die
  • reduce stress and strain on your family and friends
  • reduce uncertainty and confusion about your wishes
  • prevent disputes over your possessions

Must a lawyer write my will?

No. The law does not say that a lawyer must write your will. You can write your will yourself, fill in a blank form of a will that you buy from a store or online.  There are also books and kits available about doing wills. 

However, a will is an important legal document, so it is always best to have a lawyer do your will.  Please contact us and we can put you in touch with a lawyer who does wills & estates work, or click here for other ways to find a lawyer.

Your will must be worded very carefully to make sure that what you want actually happens. A lawyer is able to help you by:

  • making sure your will is clear about what you want to happen to your property on your death
  • making sure your will meets all legal requirements
  • telling you about a number of standard clauses that can be included in your will to provide for unforeseen events
  • telling you about options for dealing with things that may not have occurred to you
  • telling you about things you can do now to make dealing with your estate easier after you die
  • answering any questions you may have about the process of dealing with your estate
  • providing proof in the future that your will was made voluntarily, by your own free choice, and free of undue influence
  • providing proof in the future that you had testamentary capacity.

If you feel that a family member or other person is pressuring you to leave money or property to them in your will, you can talk to a lawyer about this.

If you are concerned that your spouse or someone who is dependent on you will not be able to manage their financial affairs or may be vulnerable to financial abuse or scams if you die before them, you should discuss with the lawyer how to best provide for that person.

It is a good idea to get legal advice about making a will even if you do not want the lawyer to write your will.

If you decide to write your own will, you should at least see if you can have a lawyer look it over to make sure that it meets all legal requirements and that it says what you want it to say.

What does it cost for a lawyer to do a will?

Lawyers generally charge a fee based on the amount of legal service you need and how complex the will is.  The cost to do a will can range from under $200 and upwards.  Some lawyers charge a flat fee for doing a will.  Some lawyers offer estate planning package deals where they will prepare your will, a power of attorney, and a personal directive at a lower cost than for doing the individual documents.   You should discuss fees before you make any decisions about hiring a lawyer, whether you plan to prepare the will yourself or you want the lawyer to prepare it.  Click here for ways to find a lawyer, or contact Legal Information Nova Scotia's Lawyer Referral Service, and we can try to put you in touch with a wills and estates lawyer.

Who can make a will?

Any person aged 19 or older who is of sound mind can make a will. A person under 19, can make a will if he or she is or was married.
"Being of sound mind" is often called having "testamentary capacity". This means that:

  • you must know that you are making a will and understand what a will is,
  • you must know what property you own, and
  • you must be aware of the persons (such as a spouse and children) you would normally feel you should provide for.

You must have testamentary capacity at the time the will is made. If you become mentally incompetent after you make a will, it is still a valid will.

Testamentary capacity may become an issue with persons who have a mental infirmity or who are very ill. The mental capacity of a very ill person may be affected by the illness or drugs or pain. Making your will while you are in good health may avoid the problem of having your mental capacity questioned.

You must know and approve of the contents of your will.

The will may be invalid if you were misled, whether by fraud or simply by accident, or if someone exerted undue influence on you. This is another reason for meeting with a lawyer to discuss the will so that there is evidence that the will was made by your own free choice.

{slide title="Legal requirements of a will"}

The legal requirements of a will are set out in the Nova Scotia Wills Act. Your will must meet all the legal requirements; otherwise, it will not be valid. The legal requirements include:

Age: In Nova Scotia, you must be aged 19 or older to make a will. There are a few exceptions. For example, a person under 19 can make a will if they are or were married.

Capacity: You must be mentally competent to make a will. This is also called “being of sound mind.” When talking about wills, this is most often called having testamentary capacity. To have testamentary capacity, you must:

  • know that you are making a will and understand what a will is
  • know what property you own
  • be aware of the people (such as a spouse and children) you would normally feel you should provide for

You must have testamentary capacity at the time you make your will. If you become mentally incompetent after you made your will, the will is still valid.

Testamentary capacity is often an issue with people who have a mental infirmity or who are very ill. The mental capacity of someone who is very ill may be affected by the illness, drugs, or pain. You should make your will while you are in good health to avoid having your mental capacity questioned.

Knowledge: You must know and approve of the contents of your will. The will may be invalid if you were misled by fraud or simply by accident. It may also be invalid if someone put an inappropriate amount of pressure on you, known as “undue influence.”

Written: A will must be in writing, but it does not have to be typed. It can also be handwritten or printed. A videotape, an audio or digital recording, and any other way of communicating your wishes are not considered to be valid wills.

Signature: You must sign your will must be signed at the end. You must sign the will before two witnesses who must be present at the same time, unless it is a holograph will. If you are unable to sign the will, you can ask someone to sign it for you in your presence. You must tell the two witnesses that the will is yours.

Witnessed and signed by two other people: Your will must be signed by two witnesses in your presence and in the presence of each other. The witnesses must be at least 19 years old and must not benefit from the will or be married to someone who benefits. The witnesses do not need to know what your will says.

Does a will have to be typed?

No. The will must be in writing but it can be handwritten, printed, or typed.  A videotape, an audio or digital recording, and any other way of communicating your wishes are not considered to be valid wills in Nova Scotia.

Does a will have to be signed?

Yes. The will must be:

  • signed at the end by you. You must sign the will before two witnesses who must be present at the same time. If you are unable to sign the will you can ask someone to sign it for you in your presence. You must tell the two witnesses that the will is yours.
  • signed by two witnesses in your presence and in the presence of each other. The witnesses must be at least 19 years old and must not benefit from the will or be married to someone who benefits.

You should mark the date on the will.

After the will is completed, it is wise to initial and number each page so that pages cannot be replaced or removed from the will.

You should also arrange for one of the witnesses to swear an Affidavit of Execution.

What is an Affidavit of Execution?

An affidavit is a statement sworn before a Commissioner for Oaths or Notary Public. An Affidavit of Execution is a statement by one of the witnesses to the signing of a will. In the affidavit the witness confirms that he or she witnessed the signing of the will by the testator and in the presence of the other witness and that the testator was of sound mind and of the age of majority at the time the will was signed.

An affidavit of execution can be made any time after the signing of the will but it is best to do it immediately after the will is signed. After your death, your Executor can use the affidavit in court to show that the will was properly signed and witnessed. If there is no affidavit, the Executor will have to locate one of the witnesses and have him or her swear an affidavit when the Executor applies for a grant of probate of the will.

If you want to see what an Affidavit of Execution  looks like, go to courts.ns.ca, under Probate Court forms: courts.ns.ca/Probate_Court/nspbc_forms.htm, and look for "Affidavit of Execution of Will or Codicil".

What is a holograph will?

A holograph will is a handwritten will signed by the testator but not witnessed.

Before August 19, 2008 holograph wills were not valid in Nova Scotia. Then the law was changed, and a holograph will made after August 19, 2008 is now legal. The courts have ruled that a holograph will made before August 19, 2008 is not valid.

If you have a holograph will it is best to check with a lawyer to make sure it is valid.

What happens if my intentions are unclear in my will?

If your will is unclear when you die, your family may have to go to court to sort out your estate. Your executor will have to talk to a lawyer.

Parts of a will and what a will looks like

The will contains your instructions about what you want done with your property after you die. The language should be clear and simple, so no one is confused about what you meant.

A will should have several sections. These are called "clauses":

Revocation
The will should say that you revoke all previous wills and codicils.

Appointment of an Executor
The will should appoint an executor who is responsible for carrying out the instructions in the will.

Disposal of Property
This section of the will should say who gets your property and under what conditions. A will only comes into force after your death. Up until your death you are free to deal with your property as you wish. For example, if you leave your cottage to your niece in your will, it does not prevent you from selling the cottage and using the money as you wish.

The will can only dispose of property that you still own at the time of your death.

If you are leaving property to someone, you may want to provide for the possibility that he or she might die before you. For example, if you leave some of your property to your cousin, do you want his children to inherit it if he dies before you or do you want the property to go to someone else?

Residuary Clause
Generally, wills should include a residuary clause. This clause says who gets the property that remains after all gifts have been paid out or given to the beneficiaries.

If your will does not contain a residuary clause, the remaining property (called the residue) will be treated as if you had died intestate. It will be distributed according to a provincial law called the Intestate Succession Act. 'Intestate' means dying without a will.

Other Clauses
A will may contain other clauses to suit your needs. For example, you may want to recommend a guardian for your children, create a trust, or set out the powers of the executor.

  pdf Here is a sample will (77 KB) , to give you an idea what a will might look like.

Should I put my burial wishes in my will?

It is not a good idea. Often the will won't be found or read until after the funeral. You should tell the person who is likely to arrange the funeral what your wishes are or leave separate written instructions.

Can I choose who to leave my property to in my will?

In most cases, you are free to deal with your property as you wish. However, two laws, the Testator's Family Maintenance Act and the Matrimonial Property Act, place some limitations on that freedom.

Testator's Family Maintenance Act
This Act tries to make sure that your dependents are left with money and support whenever possible and if necessary. Children (including adopted children) and a widow or widower are considered dependents under the Act.

Common law spouses are not considered dependents under the Act unless they have a Registered Domestic Partnership. Then they are included from the date they registered the partnership. Divorced spouses are not considered dependents under the Act.

The judge considers all the circumstances of a case in deciding whether to give support to dependents. They include:

  • whether a dependent deserves help (what is his or her character and conduct),
  • whether there is any other help available to the dependent,
  • the financial circumstances of the dependent,
  • any services provided by the dependent to the testator,
  • the testator's reasons for not providing for a dependent in the will. It helps if the reasons are in writing and signed by the testator, or if they are included as part of the will.

This is not a complete list. The judge may take other factors into account. A person who wants to apply for support under this Act should talk with a lawyer.

The Matrimonial Property Act
This Act recognizes the contribution of both spouses to a marriage. The Act says that when one spouse dies, the surviving spouse can apply for an equal division of matrimonial property. The surviving spouse must apply to the Supreme Court.

A judge decides what share of the property the surviving spouse should get.

Common law spouses are not covered by the Act unless they have a Registered Domestic Partnership. Then they are included from the date they registered the partnership.
The application for division must be made within six months after probate or administration of the estate has been granted. Anyone who wants to make an application should first talk with a lawyer.

Family members
You are responsible to provide for your family and dependents as required by the Testatorsí Family Maintenance Act and the Matrimonial Property Act (see above), but otherwise you are free to deal with your property as you wish. You may decide to leave your estate to someone other than your closest relatives. You may decide to leave it to some family members but not to others. If these are the kinds of things you want to do, it is wise to get advice from a lawyer and to record your reasons in writing.

Should I make a will if my spouse or partner has a will?


Yes, especially if you own anything on your own and if you want someone specific to inherit it. This includes items of sentimental or personal value such as keepsakes or companion animals (pets). You might die before your partner or spouse, or you could die at the same time in an accident. A will is the best way to let your wishes be known. You can each have a will that mirrors the other's will. They are separate wills but have identical terms.

What happens to money from my insurance policies?

An insurance policy can say that it is to be paid to a certain person or to your estate. If the insurance money is to be paid to your estate, the money from your policy will be distributed according to the terms of the will. If an individual is named, the money goes directly to that person. It does not become part of your estate.

Can I change my will?

Yes. A will only comes into force after your death. Until your death, you are free to deal with your property as you wish. For example, if you leave your cottage to your niece in your will, it does not prevent you from selling the cottage and using the money as you wish. The will only applies to property that you still own at the time of your death.

If you are leaving property to someone, the possibility that they might die before you. For example, if you leave some of your property to nephew, do you want his wife and/or children to inherit it if he dies before you? If you want the property to go to someone else, you should say so in your will.

You can change your will at any time up until you die provided you are mentally competent. You should look at your will regularly to make sure it is still what you want. For example, you may no longer own some of the property mentioned in your will. You may want to make changes because of births, deaths, marriages, or divorces in the family.

There are two usual ways to change your will:

  • You can write a separate document called a codicil. A codicil is a separate legal document to change part of your will. The opening words of a codicil usually refer to the will it is amending. Then it states which clauses of the will are revoked or amended and what is substituted. The closing words of a codicil should say that apart from the changes it makes, you confirm the terms of the original will. You must sign the codicil and have your signature witnessed in the same way as your will. A codicil is generally used only to make minor changes to a will.
  • You can make a new will. It is wise to make a new will if you wish to make major changes in your will or you have already made a number of codicils. The first clause of a new will usually says: "I revoke all wills and testamentary dispositions of any nature and kind made by me." The most recent will, properly executed (signed and witnesses), is the one which will be used following your death.

Changing your will by marking or crossing out words in the will often causes problems. It is much wiser to make a codicil or, even better, a new will.

You must be of sound mind at the time you make the changes. If you are not, your new will or codicil may be successfully challenged in court.

What is a codicil?

A codicil is a document that changes your original will. Usually a codicil is used only to make minor changes. You must sign the codicil and have your signature witnessed in the same way as your will.

Cancelling your will

There are five ways to cancel your will, or parts of your will. This is called revoking a will.

  • Your will is revoked if you marry, unless you made the will knowing you were going to get married.
  • Parts of your will may be revoked if you divorce. As of 19 August 2008, divorce revokes parts of a will that involve a gift to or provide a benefit to a former spouse or appoint him or her as executor. There are exceptions. For example, the will, a separation agreement or marriage contract may specifically say that the terms are not affected by a divorce.
  • You can make a written document saying that you want to revoke the will. It must be signed and witnessed in the same way as a will. For example, in one case the bank manager had the will. The testator became ill and signed a letter to the bank manager that said: "Will you please destroy the will already made out." This letter was properly signed and witnessed, and it revoked the will.
  • You can make a new will. A new will which is properly executed revokes a previous will. A codicil revokes certain clauses in a will.
  • You can destroy the will or ask some other person to destroy it in your presence. If your will is accidentally destroyed (for example, by a fire in which you die) a copy of the will can be used because there was no intention to revoke.

Is a will made outside Nova Scotia valid in Nova Scotia?

Your will may be valid if it was made outside Nova Scotia. You should have it checked by a lawyer to see that it meets the requirements of Nova Scotia law.

What happens if I die without a will?

If you die without a will, you are said to die intestate, and the rules set out in the Nova Scotia Intestate Succession Act must be used to decide who gets your estate:

  • Your property is distributed to the people considered to be your nearest relatives as listed in the Intestate Succession Act. There is no flexibility. The distribution may be different from what you would want.
  • Common law partners, including same-sex partners, are not included on the Intestate Succession Act distribution list unless they have a registered domestic partnership. They are covered from the date they registered the partnership.
  • If common law or same-sex spouses did not have a registered domestic partnership, the surviving spouse may have to go to court to get financial support or to make a claim on the estate.
  • Children are included in the Intestate Succession Act distribution list.
  • There will be extra steps in the process of settling your estate, which can mean additional costs and delays. This may add to your family’s pain and distress.  It will also mean that there will be less left to distribute.
  • Family members may disagree and argue about how you intended to distribute your property.
  • Someone will have to offer to look after your estate. The person must apply and be appointed by a court as an administrator or a personal representative.  That person may not be someone you would have chosen.
  • If you and your spouse die at the same time or if you are a single parent when you die and you have not chosen anyone to care for your dependent children or dependent grandchildren, someone will have to offer to take over this responsibility. The person responsible for your children or grandchildren is said to be their guardian.  A person must apply to be guardian and be appointed by a court.  That person might not be someone you would have chosen.
  • If the court appoints a guardian to look after your children, it will also often state the terms of the guardianship.  Those terms might not be what you would have chosen.

The law about intestacy also applies if you do not deal with all your property in your will.  In this case, you are said to die partially intestate. The part of your estate not covered in your will is distributed according to the Intestate Succession Act.

Who looks after my will when I die?

Your executor looks after your will when you die. An executor is the person or corporation you name to carry out the terms of your will. The executor's job is to see that everything in the will is handled properly. The Executor applies to the Probate Court for a grant of probate. This gives the executor power to handle your estate in accordance with the terms of your will.

The executor will gather together all of your assets, pay your debts and taxes, and distribute your money and property according to the instructions in your will.

If you do not name someone to be an executor in your will or if you die without a will, your next of kin will usually ask the Probate Court to appoint someone to fill the executor's role. This person is called an "administrator".

The court uses the term "personal representative" for those appointed as either an executor or an administrator.

It is best to name an executor in your will because then you can be sure that your estate will be handled by someone you know well and trust. Also, you can give broader powers of administration and discretion to your executor than the Probate Court will give an administrator.

Who should I choose as an executor?

Most people ask a family member or a close friend to act as their executor. You need to be sure that the person you choose has the time and the ability to carry out the many duties of an executor. The executor should be someone who will get things done. Looking after an estate can be difficult and it takes time. Sometimes it includes responsibilities that last for years.

Here are some things to keep in mind:

  • The best executor is a trustworthy, reliable, and competent adult.
  • You should consider choosing someone who has some knowledge about banking and business affairs.
  • Choose someone who is likely to outlive you.
  • Choosing someone who lives in the same province as you do may cut down on long distance phone calls and other administrative expenses.
  • Your spouse, a friend, family member, or heir may be able to do a good job as executor. Many people choose their spouse or main heir as executor.
  • You may wish to appoint a back-up executor in case your first choice dies, moves away, or for some reason is unable to do the job.

You can name your lawyer as executor, but most lawyers do not act as executors. They prefer to handle only the legal side of preparing documents and advertising for creditors. Before you name your lawyer check that he or she is willing to be your executor.

Some people consider naming Nova Scotia's Public Trustee as executor, especially if there is no family member or friend they feel would be able or willing to act as executor.  You need to check with the Office of the Public Trustee first though if you are considering that as an option.

What does the executor do after I die?

An executor is responsible for seeing that everything in your will is handled properly. The executor gathers all of your assets, pays your debts and taxes out of your estate, and distributes your money and property according to the instructions in your will. It is best to name an executor and a back-up executor in your will so you can be sure that your estate will be handled by someone you know well and trust. Also, you can give broader power to your executor than the Probate Court can give if it has to appoint an administrator.

The executor applies to the Probate Court for a grant of probate. This gives the executor power to handle your estate in accordance with the terms of your will.
If you do not name someone to be an executor in your will, if your executor is not able to act for any reason, or if you die without a will, your next of kin will usually have to ask the Probate Court to appoint someone to fill the executorís role. This person is called an administrator.
The court uses the term personal representative for a person appointed as either an executor or an administrator.

Can I choose a trust company to act as my executor?

If your estate is complicated or if you do not have a relative or friend who is able to act as executor, you may want to appoint a trust company as your executor. You should check that the company is willing to act as executor or co-executor. If you donít check, the company may renounce and refuse to act as executor upon your death.

Most trust companies have experience in estate planning. Their advice may help you plan your estate to save taxes and to avoid administrative problems. Also, because such companies are strictly regulated, you can be sure that your estate will be handled properly and legally.

If there is a chance that a problem will arise among your heirs, a trust company might be a good choice because it would be an impartial executor. If you appoint a trust company as your executor or co- executor, the company may give you free advice on drafting your will and may store it for you.

There can be disadvantages to using a trust company:

  • they may charge the maximum fee allowable. (Any executor may charge up to 5% in fees.)
  • they can be conservative investors
  • they may not be as familiar with your assets as a family member or friend
  • they may not know your dependents and their needs as well as a family member or friend
  • they may not be able to be as flexible in dealing with your dependents as a private individual could be
  • their fees are subject to certain taxes that are payable out of the estate

Before choosing an executor, you may also want to think about the time involved in administering your estate. For example, if you want to set up a trust for the care, education, and benefit of your children or grandchildren, this would be a long-term commitment for an executor. In a case like this, you may want to consider a trust company rather than someone who might not be able to make such a commitment or who might die before the funds in the trust have all been distributed.

Before choosing an executor, you may also want to think about the time involved in administering your estate. For example, if you want to set up a trust for the care, education, and benefit of your children, this would be a long-term commitment for an executor. In a case like this, you may want to consider a trust company rather than someone who might not be able to make such a time commitment or who may die before the funds in the trust have all been distributed.

Can the person I choose as executor refuse the position?

Yes. A person named in your will can refuse to act (called a renunciation, or "renouncing"). By refusing, an executor makes it known that he or she does not plan to take on the job and gives up all the rights and responsibilities of the appointment. If the person you choose is not told until after your death, and then he or she refuses, your next of kin will have to apply to the court to appoint someone else. This is why, before you make your will, you should ask the person whom you want to be your executor if he or she is willing to take on the job. If he or she refuses, you can appoint someone else.

You should name a back-up executor in your will in case this happens. If you have not named a back-up executor, then your next of kin will have to ask the court to appoint someone else.
Before you make your will, you should ask the people you want as your executor and back-up executor if they are willing to take on the job. If either one refuses, you can appoint someone else.

Can I appoint joint executors?

Yes. You can appoint more than one executor (called "co-executors") to share the responsibility. Having more than one person in charge means that there may be disagreements about what is to be done.
Unless you provide otherwise, each co-executor has the authority to sign documents on behalf of your estate. If your co-executors do not agree, this could cause problems for your estate.

Where should I keep my will?



You should keep your will in a safe place. Your will is a private document, and you may not want it available for family members or others to read. f you have a safe deposit box that is in your name only or that is held jointly with someone else, that is likely the safest place. It is important that your will be stored in a fireproof location. You could also give your will to a trusted person to keep in a safe place for you. Keep in mind that it may be many years before your will is needed. The person storing your will may move away or die in the meantime. As time passes, you must always keep track of where your will is being kept. You should tell your executor where your will is stored. Your executor should be able to find it easily. You should make sure that the people in your life who need to know about your will also know where to get it when it is needed. If you hired a lawyer to write your will, ask them to keep a copy as well.

Where can I get more information on probate?


The Probate Court in each of Nova Scotiaís probate districts has information available to the public. You may obtain copies by visiting or by calling your local Probate Court office or by going to the Courts of Nova Scotia website, courts.ns.ca/self_rep/self_rep_kits.htm.

The phone number for your local Probate Court office should be listed in the blue government pages of your phone book under "Courts". Office location information is also available on the Courts of Nova Scotia website.

The information available from the Probate Court includes:

Last reviewed: September 2017

Click to check out LISNS new Wills App! It helps you collect the basic information your lawyer will need to do your will for you. You don't need to create an account to use it. We're in the testing stage, so welcome your feedback. LISNS Wills App in the news: Business Voice May 2017CBC - Information Morning Cape Breton March 17 2017; CBC - Information Morning Halifax March 16 2017

Power of Attorney

What is a power of attorney?

A power of attorney is a legal document that lets you give another person authority to act on your behalf. If you are giving someone the authority to act on your behalf, you are called the donor. If you are the person receiving the authority, you are called the attorney (even if you are not a lawyer). Giving someone a power of attorney does not limit you from acting on your own behalf. You still have control of your financial affairs and are free to deal with your property, money, and investments.

The law does not require you to prepare a Power of Attorney document. But it is a way for you to choose who will act for you if you are unable to do so. It has no legal effect after your death.

Note: "Power of Attorney" is the document itself. The power you give to an attorney is written in lower case letters, as in "power of attorney."

If I have given someone my power of attorney, can I still act on my own behalf?

Yes. If you give someone your power of attorney, you can still make your own decisions until you become unable to do so.

What is an enduring power of attorney?

An Enduring Power of Attorney is a special Power of Attorney document that clearly says that the authority to act on your behalf continues even if you become mentally incompetent (lose legal capacity).

A Power of Attorney that is not an Enduring Power of Attorney will become invalid and cannot be used if you become mentally incompetent (lack capacity). In that case, a guardian or representative may need to be appointed to handle your affairs. For more information on adult guardians, see the section on Guardianship of Adults.

Should I have an ordinary Power of Attorney or an Enduring one?


The kind of Power of Attorney document you have depends upon your needs. Every situation is different, so you should speak with a lawyer about what is best for you in your situation.

If you want the person named in your Power of Attorney to be able to continue to act if you become mentally incompetent, then you will need to have an Enduring Power of Attorney.

If you already have an Ordinary Power of Attorney, talk with your lawyer about whether you should replace it with an Enduring Power of Attorney.

What is a Springing Power of Attorney?


A springing Power of Attorney is a specialized Enduring Power of Attorney document which states at what point it will ìspringî into effect (such as when a certain event happens).

A Springing Power of Attorney is most often used by business owners . If something unexpected happens to a business owner, they need to have someone else authorized to run the business. The person given this authority has springing power of attorney.

Most individuals do not need a Springing Power of Attorney. If you think you do, you should talk to a lawyer about your needs.

Why might I need a Power of Attorney?

There are many reasons to do a Power of Attorney such as:

  • You are too ill to deal with your affairs and you need someone to take over control for you until you get better.
  • You are not able to get around very well and you want to authorize someone to make deposits to and withdrawals from your bank account.
  • You are travelling or working away from home and you want to give someone authority to deal with your affairs while you are away.
  • You have an illness that will reduce your mental or physical mobility in the future, and you want to arrange now for that future need.
  • You want to make arrangements now while you are well and competent, in case something unexpected takes place (such as an accident), that might limit your ability to deal with your affairs or to get around.

What can happen if I do not have an Enduring Power of Attorney?

If you do not have an Enduring Power of Attorney, and you become mentally incompetent and unable to take care of your affairs, a relative or friend may ask a court to appoint a guardian to handle your affairs. This might not be the person that you would have chosen to handle your affairs.

For more information, see the section on Guardianship of Adults.

How much authority can I give in a Power of Attorney?

You can give your attorney two levels of responsibility:
a) A general power of attorney: this gives your full authority to your attorney. There are no limits on what they can do on your behalf .
b) A specific power of attorney: this says exactly what authority you give to your attorney. It limits what he or she can do on your behalf .

A specific power of attorney is most often used in a situation where you need someone to sell a piece of land for you or to deal with a particular bank account for you. It is important for a specific power of attorney to include all steps involved in the work you want done, so the attorney can complete the work.

When is it too late to give a power of attorney?

It is too late to give a power of attorney if you are not mentally competent. Competency is sometimes an issue where the person wishing to give a power of attorney is suffering from progressive dementia. In this situation, it may be necessary to get a medical opinion as to whether the person has capacity to give a power of attorney.

Who can be my attorney?

Anyone who is at least 19 years old and who is mentally competent can be your attorney. You should choose someone you trust and who will carry out your wishes.

If you do not wish to give a relative or friend power of attorney, you can appoint a lawyer or trust company. Also, depending on the circumstances, the Office of the Public Trustee may agree to act as your attorney. The Public Trustee is an official appointed by the provincial government who manages the affairs of persons who, for one reason or another, are unable to manage their own affairs. (For more information, see the section on the Public Trustee in our publication 'It's In Your Hands:  Legal Information for Seniors and their families".)

Is there anything else I should include in an ordinary Power of Attorney?

The following are not legal requirements but they are a good idea:

  • Put the date on the document.
  • Initial and number each page so pages cannot be replaced or removed.
  • Have your signature witnessed by someone who is a competent adult (not the attorney and not the attorneyís spouse). Have that person sign their name on the document. The witness does not need to know what is stated in your Power of Attorney.
  • Arrange for the witness to swear an Affidavit of execution. (See the next question for more information.)

What is an Affidavit of Execution?

An Affidavit of Execution is a statement sworn by a witness in which the witness confirms that he or she saw you sign the Power of Attorney.

Although it is not a legal requirement to do an Affidavit of Execution for a Power of Attorney, it is common practice. If the Power of Attorney needs to be recorded at the Land Registration Office, you will need an Affidavit of Execution.

Affidavit of Execution is a combination of two legal terms. An affidavit is a statement that is sworn before a Commissioner of oaths or a notary Public.

The word execution is a legal term for the formal signing of a legal document before either a Commissioner of Oaths or a Notary Public.

All lawyers are Notary Publics and Commissioners for Oaths as well as lawyers. But you do not have to be a lawyer to be a Notary Public or Commissioners for Oaths. You can find Notary Publics and Commissioners for Oaths in the Yellow Pages.

For more information on recording your Power of Attorney at the Land Registration Office, see:
Can my attorney deal with land?
Does my Power of Attorney have to be recorded with the province of Nova Scotia?

Are there special requirements for an Enduring Power of Attorney?

Yes. In addition to the legal requirements for an Ordinary Power of Attorney, an Enduring Power of Attorney has two special requirements:

  • It must be witnessed by someone who is competent and at least 19 years old who is not the attorney and who is not the attorneyís spouse.
  • It must state that it is to continue to be effective in the event of the legal incapacity of the donor.
    These special requirements are set out in the Nova Scotia Powers of Attorney Act.

Does the person receiving the power of attorney have to sign the document?

No. But if they are to have access to any of your bank accounts, you will need to arrange to have them sign at the financial institutions where you have those accounts. Each bank, trust company, and credit union will need their signature. The institution will also have its own forms for you to complete.

Where can I find a commissioner for oaths?

All lawyers are commissioners for oaths. In addition, some people who are not lawyers are also commissioners for oaths. You can usually find commissioners in the local provincial court clerk’s office, in the Town or City clerk’s office, in government offices, hospitals, and homes for special care.

What powers will my attorney have?

You choose what powers to give your attorney.

A general power of attorney gives the attorney power to act in every capacity for the donor.

A specific power of attorney gives the attorney power to carry out specific acts only, such as the power to sell land or access a bank account.

You must be sure that a specific power of attorney gives your attorney enough power to complete the task. For example, a power to purchase a piece of land should include the power to sign all documents necessary to complete the purchase.

What duties does my attorney have?



Your attorney has a duty to take good care in carrying out what you have authorized them to do. This duty includes:

  • to stay within the authority you have given
  • to use reasonable care and skill
  • to act in your best interests
  • not to profit personally from what is done for you.

Do I need a lawyer to write a Power of Attorney?

No. The law does not say that a lawyer must write your Power of Attorney. You can make up your Power of Attorney yourself. You can fill in a blank form that you can buy from a store or download from the internet. There are also books and kits available for Powers of Attorney.

It is wise to get legal advice from a lawyer about making a Power of Attorney, even if you do not want the lawyer to write it for you. A Power of Attorney is an important legal document and it must be worded carefully to make sure that it says what you want. In the unlikely event that a lawyer who draws up a Power of Attorney makes a mistake, there is insurance to cover the situation. Among other things, a lawyer can:

  • make sure the Power of Attorney is clear about the amount of authority you are giving to your attorney
  • make sure that your Power of Attorney covers all the steps necessary for your attorney to do what you want done
  • make sure the Power of Attorney meets all the legal requirements
  • tell you about a number of standard clauses that can be included in a Power of Attorney to provide for unforeseen events
  • tell you about options for wording the Power of Attorney
  • tell you about things you can do now to make it easier for your attorney to deal with your affairs
  • answer your questions about how your attorney might use the Power of Attorney to take care of your affairs
  • help you understand the legal consequences of giving a Power of Attorney
  • provide proof from their meetings with you that that you had legal capacity and that your Power of Attorney was made voluntarily, by your own free choice, and free of undue influence

If you decide to write your own Power of Attorney, you should have a lawyer look it over to make sure that it meets all the legal requirements and that it gives your attorney the authority you want to give.
It is very important to get advice from a lawyer if you want to have a specific or a Springing Power of Attorney to ensure that these documents are written to meet your individual needs.

What does it cost for a lawyer to do a Power of Attorney?


Lawyers charge a fee based upon the amount you want them to do. For example, you may want the lawyer to look at a Power of Attorney you have prepared or you may want them to prepare the Power of Attorney for you. The fee depends on how complex the work is. You should discuss fees with the lawyer before you decide to hire them.

Can I buy a power of attorney form?

Some office supply stores may have forms for general powers of attorney. There are also books that provide examples of forms.

There is no standard form for a specific power of attorney because the wording will depend on what powers you want to give your attorney. You or your lawyer will have to draw up the form to fit your specific needs. You will usually need a special form from your bank if you want your attorney to access your bank account.

How much will it cost?

A general power of attorney form from an office supply store costs a few dollars. Banks do not charge a separate fee for their power of attorney forms.

Lawyers’ fees will vary depending on how long it takes to draw up the power and the number of times the lawyer meets with you. You should ask the lawyer about his or her charges.

Other costs:

• Your attorney may have out-of-pocket expenses, such as for postage and telephone.
• If your attorney is a lawyer and you ask him or her to do work related to being a lawyer such as purchasing property or drawing up a will, he or she may charge for doing these tasks.
• The Public Trustee and trust companies charge fees for acting as your attorney. Fees are based on the value of your estate and your income.

A friend or relative is not entitled to any fee unless there is an agreement between the two of you for payment.  In that case, you should include the terms of payment in the Power of Attorney document.  Often a family member or a friend acts as an attorney without payment.

Do I have to pay the person named in the Power of Attorney?

That depends on whether you have appointed a relative, friend, lawyer or trust company as your attorney.

A friend or relative is not entitled to any fee unless there is an agreement between the two of you for payment. In that case, you should include the terms of payment in the Power of Attorney document. Often a family member or a friend acts as an attorney without payment.

If a lawyer is acting under a power of attorney and is doing legal work for you, such as purchasing property or drawing up a will, they will charge a fee for doing this work.

A trust company will charge a fee for acting as your attorney. The fee is based on the value of your estate and your income.

No matter who you pick, your attorney is entitled to be compensated for any out-of-pocket expenses such as postage and parking.

Can the person I choose as my attorney decide not to act?

Yes. Before you write your Power of Attorney, you should ask the person you want as your attorney if they are willing to take on the job. If they refuse, you can appoint someone else. You should also ask a back-up attorney.
If you do not name a back-up attorney, your attorney will automatically be cancelled if your attorney gives you notice that they no longer want to act as your attorney.

Can my attorney use my bank account?



Yes, if you include that authority in your Power of Attorney. Banks and other financial institutions generally need your attorneyís signature for their files. Most have their own Power of Attorney forms which they will want you to sign. These forms can only be used to deal with that particular financial institution. They cannot be used to deal with other banks or financial institutions or to deal with your other general affairs. You should ask your bank or credit union if they have any special requirements.

Carefully read any form you are given before you sign it. It may limit an attorneyís powers to deal with particular accounts or it may include power to deal with all accounts, investments, and safe deposit boxes held by you.
You can talk with the staff at the financial institution about your needs. If you do not understand all of the terms, you can ask them or ask a lawyer.

Can my attorney do my taxes?

Yes, but usually only if you include a special clause in your Power of Attorney that permits them to deal directly with the Canada Revenue Agency on your behalf.

Can a power of attorney be used to buy and sell land?

Yes, if you give your attorney that authority in your Power of Attorney. If your Power of Attorney allows your attorney to deal with land, it must be recorded at the Land Registration Office in the district where the land is located before the land transaction can be completed. The Power of Attorney must be signed under seal and have an Affidavit of execution.

Phone numbers for Land Registration Offices are listed in the blue Government pages of the phone book under Land Registration or visit novascotia.ca for locations. There is a fee to record documents.  Fees change from time to time. Contact staff at the Land Registration Office for information on current fees for recording documents.

Land transactions done with a power of attorney are not valid until the power is registered.

What happens if I become mentally incompetent?

If you become mentally incompetent, the power becomes invalid unless you have an enduring power of attorney. An enduring power of attorney says that you wish the power to continue even if you become mentally incompetent.

If you do not have an enduring power of attorney and you become mentally incompetent, a guardian may have to be appointed by the court to handle your affairs.

If you have an ordinary power of attorney you may wish to replace it with an enduring power of attorney to enable your attorney to continue to act should you become mentally incompetent.

Where should I keep my Power of Attorney?

You should put your Power of Attorney document in a safe place. A fire-proof location is the best place.
If you want your attorney to start using the power immediately, you should give it to them. Keep a copy for yourself in a safe place. You should give a copy to any financial institutions and to any other parties that your attorney will be dealing with on your behalf. Keep a list of the businesses and people to whom you give a copy of your Power of Attorney, in case you have to tell them of any changes.

If you have a Power of Attorney that may not be used for a while, perhaps never :

  • Put it in a safe place that your attorney knows about, which they can access quickly, if necessary.
  • Leave it with a trusted third party, such as a lawyer, and give clear instructions about when to release it.
  • Give it to your attorney to keep in a safe place until it is needed.

Do not put your Power of Attorney in a safe deposit box that is in your name only, as your attorney may not be able to get access to it. It may be many years before your Power of Attorney is needed, if it is ever necessary. Meanwhile, the person storing your document may move away or die.
As time passes, keep track of where your Power of Attorney is being kept. Make sure you tell your attorney where the document is stored so that they can find it if it is needed. You should make sure that the people in your life who need to know about your Power of Attorney also know where to get it when it is needed.

How does a power of attorney end?

You can end a power of attorney at any time and should do so if your attorney is abusing the power you have given them.

A power of attorney can end in any of these ways:

a) Notice by the donor: You may cancel a power of attorney by giving notice to the attorney. The notice must be in writing, dated, and signed by you.

If you cancel your power of attorney:

  • write to all the people and businesses who dealt with the attorney on your behalf to tell them that the power of attorney has been cancelled. Keep a copy of the letters.
  • ask everyone who has a copy of the document to return it to you. Banks and some other organizations may need to keep a copy of the document for their files.
  • contact the Land Registration Office if the Power of Attorney is registered there so you can find out what needs to be done to put notice of your cancellation on the record. You do not need to do this if the power of attorney has already ended because it was for a specific time period or for a task that has been completed.

You should always name a back-up attorney in your Power of Attorney in case your first choice is not able to act for any reason. If you do this, your back-up attorney takes over authority to act on your behalf and your Power of Attorney document remains effective. If you have not named a back-up attorney, your Power of Attorney document will have no legal effect after your attorney has given you notice that they no longer want to act for you.

b) Notice by the attorney: Your attorney can give you notice that he or she no longer wants to act as attorney. You should notify the bank and others that the power has been cancelled. Keep a copy of the cancellation letters. Ask your attorney to return the Power of Attorney to you.

c) Mental incompetence: If you become mentally incompetent, your Power of Attorney is automatically cancelled unless it is an Enduring Power of Attorney.
If your attorney becomes mentally incompetent and you have not named a back-up attorney, your Power of Attorney is automatically cancelled. This is the case whether it is an ordinary or an Enduring Power of Attorney.
In some situations, when the Public Trustee is acting for a person who becomes mentally incompetent, the Public Trustee will continue to act on behalf of that person.

d) Death: When you die the power of attorney is cancelled.  If the attorney dies the power of attorney is cancelled unless you have named a back-up attorney.
If the public trustee is acting on behalf of a person who dies, they will continue to act until a court appoints someone to administer the estate if the person did not leave a will naming an executor. (For more information, see the section Public Trustee or go to novascotia.ca/just/pto/.)

e) Bankruptcy: If you become bankrupt, a licensed trustee in Bankruptcy takes over all your financial affairs and your power of attorney is cancelled. They administer the affairs of a bankrupt person.
If your attorney becomes bankrupt, your power of attorney is not automatically cancelled. It is only cancelled if the bankruptcy makes your attorney unfit to carry out their duties.
If bankruptcy makes your attorney unfit to carry out their duties, your back-up attorney, if you named one, would take over authority to act on your behalf and your Power of Attorney document would remain effective
You should give written notice when a power of attorney is cancelled or when an attorney's authority is ended. Any person or business that deals in good faith with the attorney can rely on the Power of Attorney if it does not know that the document has been cancelled.

f) Time: A Power of Attorney document can be for a specific time or task.When the time or task is complete, the power of attorney ends. Where a specific power of attorney is given to complete a specific task authority under the power of attorney ends when the task is completed.

For example, you might give someone a specific power of attorney to complete the sale of a house. The attorney's authority under that document would end when the sale of the house is completed.
In another example, you might give a general power of attorney while you are away on vacation. The attorney's authority under that document ends on your return.

If a specific power of attorney authorizes the attorney to act on an ongoing basis, the power continues until it is cancelled in one of the ways outlined above.

A general power of attorney may continue indefinitely or it may be for a specific time.

Do powers of attorney have to be registered?

No. A Power of Attorney only has to be registered when it gives authority to deal with land. Then it must be recorded at the Land Registration Office where the land is located.

What are the risks of giving someone my power of attorney?

Power of attorney gives someone else power to act for you. Most people who are appointed under a Power of Attorney are honest. They try to do a good job and live up to their obligations.
There is a risk that the attorney could abuse that power because they:

  • believe that they know what is best for you, even if you don't agree;
    or
  • want to get money or property for themselves.

Banks and other financial institutions rely on the written Power of Attorney document. If you give your attorney power to withdraw cash from your bank accounts, to deal with your property, or to buy and sell investments on your behalf, the bank will not usually contact you to find out if you approve of what the attorney is doing.

Is an Attorney made outside of Nova Scotia valid here?


The legal requirements of powers of attorney are provincial. Your Power of Attorney may be valid if it was made outside Nova Scotia. To find out for sure, you should have it checked by a Nova Scotia lawyer to see if it meets the requirements of the law here.

Is my Power of Attorney valid outside of Nova Scotia?


If your attorney may need to use the power of attorney outside of Nova Scotia, you should check with a lawyer to see whether you should draw up a separate Power of Attorney for that province or country. For example, if you and your spouse spend the winter in Florida and you have given each other power of attorney, it would be wise to get legal advice as to whether your Powers of Attorney meet the laws of Florida.

What can I do to prevent misuse of a Power of Attorney?

Here are some things you can to help prevent abuse of a power of attorney:

  • Choose carefully. Choose someone you can trust who will respect your wishes to be your attorney.
  • Continue to pay attention to your affairs. Ask your attorney questions. Insist upon seeing regular statements. Do not give up all control to that person.
  • Require your attorney to give you (or someone else if you become incompetent) regular updates on how they are managing your affairs.
  • If you have a lot of savings, property, or investments, consider appointing a lawyer or a trust company to act on your behalf. Look carefully into the costs of this before you make a decision.
  • Give a specific rather than a general power of attorney, unless your circumstances require that you give your full authority. For example, if you only need your attorney to deal with one bank account, then only give them power to do that.
  • Check your bank statements and cancelled cheques carefully. You can put a limit on the amount that your attorney can withdraw from your accounts. If the attorney wants to withdraw more than that amount, then you would have to let your bank know that you agree.
  • If you have investments, arrange for your investment dealer to keep you informed about all dealings. You can also arrange for them to inform a third person if you become incompetent.
  • Make a list of your property, jewellery, savings, furnishings, and investments. Keep it up to date. Give a copy to the person named in your Power of Attorney and to at least one other person you trust .
  • Tell your banks, financial institutions, and investment dealers to tell you of any transfers of funds and transactions over a certain limit.

What can I do if my attorney misuses the Power of Attorney?

There are a number of things you can do, depending on your situation and on your relationship with your attorney:

  • At the very least, talk over your concerns with a lawyer or someone else you trust.
  • Ask your attorney to account for how they have managed your affairs.
  • You can cancel their authority under your Power of Attorney and use your back-up attorney. If you did not name a back-up attorney, you could cancel the Power of Attorney
  • It is a criminal offence to misuse a power of attorney. If your attorney is using your property or money for their own benefit without your consent, you should talk with a lawyer and the police.
  • If you have an Enduring Power of Attorney and later become incompetent, your attorney can be required to account for how they have managed your property. The application would be made to the Supreme Court of Nova Scotia by someone who believed that your attorney was abusing their power. The court could order the attorney to account to the public trustee. The court can also remove the attorney and appoint someone else to manage your affairs.
  • An attorney can voluntarily give an accounting to the Public Trustee Office.
    Under the Adult Protection Act, if an attorney or guardian is neglecting the adult's property or dealing with it in a way that is not in their best interests, or if an adult is in need of protection, a judge may inform the public trustee . (For more information, see the section on the Public Trustee or go to novascotia.ca/just/pto/.)

More information

  • Contact a lawyer in private practice who does wills & estates work.  Click here for ways to find a lawyer.
  • Visit www.seniors.gc.ca to read "What every older Canadian should know about Powers of Attorney and Joint Bank Accounts", a Federal and Provincial Government publication.

Last reviewed: August 2017

Public Trustee

The Public Trustee Office is an independent provincial office that has the authority to manage the financial and health care needs for certain people when no one else is willing, suitable, or able to act.

The Public Trustee Act authorizes the public trustee to act as guardian, custodian or trustee of a person who is unable to care for their own affairs.  It also authorizes the public trustee to act as executor or administrator of the estate of a person who has died.

The section on the Public Trustee (click to download in pdf), part of 'It's in your hands: legal information for seniors and their families', is a good place to start for answers to some of your questions about the Nova Scotia Public Trustee.

You will find more information on the Nova Scotia Public Trustee website at gov.ns.ca/just/pto/.

Scams, identity theft and other fraud

Fraud is a crime.  Fraud affects all age groups, but older adults may be more at risk.  Fraud usually causes financial loss for the victim.  The internet has created new opportunities for fraudsters. 

Scams, identity theft and other fraud is a good place to start to help you to recognize fraud and protect yourself.

Scams, identity theft and other fraud is part of 'It's In Your Hands: Legal Information for Seniors and their families'.