Disclaimer: This article is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.
Movies and TV shows like to present final wishes dramatically, whether it is a recorded video or a deathbed utterance. However, what makes a person’s wishes legally valid?
You may be asking that question because you may be embarking on your own estate planning. You may be considering a will kit or another option and wonder if it will be deemed valid by the courts.
Alternatively, you may be handling someone’s estate. The first step in executing a deceased person’s wishes is locating a will and ensuring it is valid. It is a crucial question: if the will is valid, then the distribution of the estate can move forward. If not, then other steps must be taken.
What standards must a will in Ontario meet? Estate law is governed primarily by the Succession Law Reform Act, which sets out the requirements for making a legally valid will.
This article will go through these requirements, including the requirements for a handwritten or holograph will (note that there is no such thing as a holograph power of attorney in Ontario). Finally, we will outline why you should seek more than the bare minimum in terms of a will.
Requirements for a valid and legal will in Ontario
In order for a will to be valid, the following must be true:
- It must be written in a physical form. What does that mean? It means that there must be a physical, hard copy, and not simply in a digital or online format.
- The testator (the person making the will) must be over the age of majority, unless they are married, have children, or are members of the armed forces.
- The testator must be of sound mind.
- There must be witnesses to the testator signing the will unless it is a holograph will (which we will discuss further in this article). There are specific requirements as to who can witness a will being signed. It cannot be any of the following individuals:
- any beneficiary or his/her spouse
- the person named as executor or his/her spouse
- Previously, the testator and two witnesses needed to be in the same physical location while the will was signed. However, due to COVID-19, those requirements have changed. Virtual witnessing is possible if one of the witnesses is a licensed lawyer or paralegal. There are other requirements, such as confirming that all parties can hear and see each other. Additionally, the testator and witnesses must all sign identical copies of the will. These counterparts together will form your legal will.
- The signatures must appear at the very end of the will.
What if I find a handwritten will? Is it valid?
On occasion, someone will find a handwritten will amongst their loved one’s belongings and may wonder if it is valid. This is referred to as a holograph will, and like all wills, it must be in a physical format.
A holograph will does not require witnesses and only needs to be signed by the testator.
There are other requirements to be considered. A holograph will must:
- be entirely in the testator’s handwriting. This means that even documents referenced by the holograph will are not considered part of the will if they are typewritten.
- be a “full and final expression of intention as to the disposal of property upon death.” This means that it must be clear that the document was not meant to be a draft.
It is the responsibility of the person seeking to have a holograph will deemed valid to prove that it was written by the testator and that it was a final, full expression of the testator’s intentions.
If the will is deemed invalid, then the estate will be handled according to the previous will or, in the absence of a previous valid will, as per Ontario’s intestacy laws.
Even if it is deemed to be a valid holograph will, there may be court orders that are needed in order to authorize the executor to take certain steps with the estate’s assets. These court orders would not have been necessary had the deceased person had a well-drafted will in place, prepared by an experienced estate lawyer such as either of those at Beeksma Law.
More than the minimum
The requirements noted above are the bare minimum of what is required for a will to be valid. However, to fully protect your loved ones and your wishes, you need more than the bare minimum.
There are many provisions not required by law that are simply good practice. For example, we previously spoke about the role of an executor. While you are not required to name an executor, it is undoubtedly in your best interests to appoint someone to handle your affairs.
In the absence of that provision in your will, the courts will be called upon to appoint someone for that role. This process will delay your assets being distributed and your beneficiaries being able to move forward.
Of course, the more complex your life is, the more you will benefit from having professional legal advice about your estate planning. A seasoned lawyer will be able to spot areas that should be addressed before you pass, in order to save your surviving family the trouble of time-consuming and expensive legal disputes.
At Beeksma Law, we have a wide breadth of experience in estate planning and litigation. Our high degree of skill means that we can provide you with quality legal advice to take care of your affairs while you’re still around to appreciate it!
We also pride ourselves on preventing issues instead of just reacting to them. We can also help you limit any disputes after you pass and ensure that your affairs are dealt with as quickly and painlessly as possible.
Reach out to our team for a free consultation by clicking here. We would be more than happy to discuss your needs with you.