With Ontario’s Make-a-Will Month coming up in November, there isn’t a better time to create or revise your will. However, it’s important to understand the formal requirements for creating a will before you set your pen to paper. Ontario legislation outlines strict requirements for wills, including who can make them, the form of wills, and how they are witnessed. In this blog post, we’ll provide a high-level overview of those requirements.
Understanding the elements of a valid will is important to ensure your testamentary intentions are followed when you pass and avoid wills challenges after the fact. If you have questions about your will or are considering applying to challenge a will, contact the estate lawyers at Derfel Estate Law before you proceed.
Any adult in Ontario, with the capacity to do so, can make a will.
Minors (persons under the age of 18) cannot make a will in Ontario. However, there are exceptions to this rule. In the following cases, a minor will be allowed to make a will:
- The minor is married
- The minor is contemplating marriage, and their will states that the will is made in contemplation of marriage to a named person (in which case, the will only becomes valid once the minor has married the named person)
- The minor is a member of the Canadian Armed forces and is in active service or a regular force
- The minor is a sailor and at sea or in the course of a voyage
Requirements for a Valid Will in Ontario
Ontario’s Succession Law Reform Act, RSO 1990, c S.26 sets out the requirements for a valid will. Those requirements are as follows:
A testator (the testator) must have the mental capacity to create a will. This means that they must be able to understand the nature and extent of their property, who their beneficiaries are, and the implications of their decisions. understand the implications and nature of their will, the scope of their assets, and who their beneficiaries are, among other things. An alleged lack of testamentary capacity is a common ground for wills challenges, so ensuring the testator has the capacity to prepare a will is critical.
A Valid Will Must be in Writing
According to s. 3 of the Succession Law Reform Act, a will must be in writing; otherwise, it is invalid. This means that you will need a physical, written copy of your will. You cannot rely on, say, a video recording of you providing your wishes. You also cannot create an “electronic” will (i.e., a digital document).
Interestingly, during the COVID-19 pandemic, British Columbia began allowing testators to make and sign their wills electronically. Time will tell whether Ontario will follow its lead.
Execution Requirements for a Valid Will
The Succession Law Reform Act outlines several signature requirements for wills. While signatures and witnesses might not seem like a make-or-break element of a will, the Succession Law Reform Act rules must be followed; otherwise, the will is invalid.
A will must be dated and signed at the end by the testator. If the testator is unable to sign the will, they can direct another person to sign it for them in their presence.
Note that the testator’s signature must be “placed at, after, following under or beside or opposite to the end of the will”.
Two witnesses must be present when the testator signs the will. After the witnesses have witnessed the testator sign the will, they must also sign the will.
Typically, a testator’s witnesses will witness the will in person. However, the Succession Law Reform Act allows virtual witnessing of wills if one of the witnesses is a “licensee” under the Law Society Act. A licensee is defined as, among others, a lawyer licensed to practice in Ontario. In these circumstances, the second witness does not need to be physically present and can virtually witness the testator’s signature.
Who Can Witness a Will in Ontario?
Practically anyone can witness a will apart from beneficiaries (i.e., anyone who will be receiving something from the estate according to the will) and persons who lack capacity. If you are preparing your will with the help of an estate lawyer, they will have staff who can assist with witnessing.
Can I Amend a Valid Will Before My Passing?
If you’ve already created a valid will, you can make amendments to your will at a later date. To be valid, an alteration to a will must be signed by the testator and witnesses and otherwise comply with the validity requirements of wills, generally.
Holographic Wills are an Exception
While the formalities of a valid will need to be met in order for a will to be valid, there are other kinds of wills that may still qualify. The prime example is a holograph will.
Under the Succession Law Reform Act, testators are allowed to make a will by writing down the will and signing it without witnesses present. However, holograph wills are an exception – not the norm – and should be treated as such. Creating a holograph can result in confusion and uncertainty, and there is no guarantee that a holograph will be accepted by the courts.
Can An Invalid Will Be Saved?
Suppose a testator makes their will but fails to meet one of the formal requirements outlined in the Succession Law Reform Act – for example, failing to sign the will. Before 2022, an invalid will was just that – invalid. Beneficiaries and other interested parties could not ask the court to help them correct an invalid will. However, recent amendments to the Succession Law Reform Act have created a process whereby the court can declare an invalid will to be a valid will if it is satisfied that the document otherwise sets out the testamentary intention of the testator.
Ultimately, adhering to the requirements for a valid will from the get-go is the best option. It reduces uncertainty and time, and expense after the testator’s passing. However, this new process is a welcome change and provides some reassurance if a will does not follow the formalities of the Succession Law Reform Act.
Contact the Toronto Estate Lawyers at Derfel Estate Law for Guidance with Wills
If you need help with an existing will or are considering applying to challenge a will, contact the estate lawyers at Derfel Estate Law before you proceed. We can help you determine whether you are eligible to bring such a claim, help you understand your options and rights, and represent you throughout the challenge process. To find out how we can help, call our office at 416-847-3580 or contact us online to schedule a consultation.