What Makes a Will Valid?

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.

Top 7 Questions Asked By New Entrepreneurs

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.

If you are starting a business in Ontario, welcome and congratulations! It is so exciting to see people take their passion and ideas and build a business.

We’re sure you have done a lot of planning and preparation to get you to this point, including market research and deciding on your business name. You have a strong idea of your product or service and how you are going to bring it to market.

However, you may also be feeling a little overwhelmed with the legal side of things. You may be getting conflicting advice and having a hard time sorting out what you need to do to protect this wonderful business you are creating.

In this article, we will answer your frequently asked questions and help you find peace of mind as you embark on your journey into entrepreneurship!

Question #1: What kind of business structures can I choose from?

Assuming you are a for-profit business, you have five choices: a sole proprietorship, a partnership, a joint venture, a limited liability partnership, and a corporation.

A sole proprietorship is a business owned and run by one individual with no distinction from the owner. It’s easy to start, but your personal assets are exposed in the event of a lawsuit.

Partnerships have two or more owners who contribute their capital and/or skills for a share of profits without being taxed as a unique entity.  They also share in the liabilities of the partnership.

Joint ventures are two or more people who come together to collaborate on a project. They may contribute their capital and/or skills with an agreement that allows them to keep their profits and liabilities separate.

Limited liability partnerships are a combination of a partnership and the tax benefits of a corporation. They are limited to certain professions, such as lawyers and accountants.

Finally, a corporation is a distinct legal entity that is owned by the shareholders. It can sue and be sued, as well as purchase and sell property. The shareholders are not personally liable for the corporation’s debts or liabilities except to the extent of their investment in stock.

Question #2: Do I need to register my business name?

In Ontario, you need to register your business name if you are doing business as anything besides your legal name.

Fortunately, applying for a master business licence is a fairly easy process and can be done online. You’ll want to first do a search to make sure that your name is not already being used.

Master business licences are valid for five years, so once you register yours, be sure to mark the date that it will need to be renewed.

Question #3 – Should I incorporate right away?

We devoted an entire blog to this question, but here is the short answer: maybe.

It is not always necessary to incorporate your business right away, and it would be wise to weigh the pros and cons. On one hand, you are limiting your own personal liability and may be in line for some tax benefits. On the other hand, incorporating incurs extra expenses and requires additional paperwork to be filed annually.

If you do decide to incorporate, you’re going to want to involve a lawyer in the process. A skilled lawyer will be able to ensure that your Articles of Incorporation not only serve your needs today, but will continue to do so down the road.

Question #4 – What contracts do I need?

It will, of course, depend on your business but some contracts that a new business may need include a service contract, employment contract, lease, and non-disclosure agreement.

If you opt to form a partnership, then a key contract that you will need is a partnership agreement setting out how your business will be run. Similarly with a joint venture, you will need a joint venture agreement.

You also need to consider your website and online presence. If you’re collecting people’s personal information, do you have a privacy policy in place? Does your website have terms and conditions? You will want those pieces in place and ensure that they comply with the current legislation.

Question #5 – Do I really need contracts in place?

Yes.

Question #6 – Do I need a contract if I’m doing business with my brother, mother, best friend, etc.?

Yes.

Having contracts in place protects your business and your relationships. Memories can fade and what was agreed upon in an oral conversation can be remembered differently years later.

A contract will clearly spell out the terms and conditions of the agreement for both parties, as well as establish remedies if those terms are not met. Having expectations clearly spelled out will minimize disagreements and prevent misunderstandings from becoming a larger issue. 

Question #7 – Can I use online templates?

You can, but even then you will want a lawyer to review them. It is hard to know if online templates are accurate and if they fit your business needs.  

In particular, a common issue that we see is a client who has downloaded a template that is not even drafted for Ontario, let alone Canada (e.g. American templates).  That kind of template is virtually useless to you, which is another reason why you need to have a lawyer involved.

As well, we recently were approached by someone who had been using an online template. With changes in her business, there were areas where her contract was unclear and it was negatively affecting her business.

Discussing your contracts with a lawyer will ensure that your contract fits your needs and covers the terms that are important to you. As well, an experienced business lawyer will see gaps that you may not even realize are there! 

A well-drafted and comprehensive contract will help protect you, but it is only as good as the person who wrote it. Having a lawyer draft your contracts can give you peace of mind that someone else has taken care of looking out for your best interests.

Where can I find advice that I can trust? 

From Beeksma Law, of course! 

At Beeksma Law, we have extensive experience helping entrepreneurs build strong legal foundations for their businesses. We are actively involved in the business community in Ontario and are driven to help others succeed. 

If you would like to learn more about how you can get your business started off on the right foot, then book a call with us today. Our team would be more than happy to discuss your business needs. 

How Beeksma Law Uses Technology for a Better Client Experience

When you are looking for an attorney, what is the most important thing to you? Is it the size of their office? What about their location or hours of operation? At Beeksma Law, we know that none of these things matter if you’re not getting results!

That’s why at Beeksma Law, we have embraced technology and integrated it into our practice. This blog post will discuss some ways that we use cutting-edge technology to create a better client experience!

Seamless Service

We have been using technology and modernizing our practice well before the COVID-19 pandemic began. However, we saw some real benefits during this tumultuous time.

Many of our clients wanted to avoid face-to-face contact as much as possible and to be honest, so did we! Meeting virtually allowed us to have face-to-face discussions with our clients without risking anyone’s safety. 

Also, we were able to continue serving our clients by using technology-based tools. When the lockdowns first began, our firm was prepared to continue business as usual with minimal interruptions. 

We had already invested in many technological efficiencies, including video conferencing equipment and cloud-based data storage. Our investments paid off during the COVID-19 pandemic, allowing us to continue serving our clients without interruption of service or risk of infection.

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Client Convenience

Imagine you are buying your first home and need to visit your lawyer’s office at least twice during business hours. That would involve taking at least 2-3 hours off for a one-hour appointment, depending on how far you are from your lawyer’s offices.

Logging into a virtual meeting reduces that time to minutes.  Our clients do not have to worry about fighting traffic, finding parking and losing valuable time to be able to receive sound legal advice.

As well, since the process is so simple, our clients are in a better frame of mind to truly understand our advice and make sound decisions.  Stress limits our ability to make wise choices so anything that we can do to remove that stress is very important.

Increased Access to Legal Advice

While our office is located in Hamilton, we have clients all across Ontario.

For those in remote communities, access to legal advice may be limited. A modern law firm that embraces technology opens up options to our clients. At Beeksma Law, we strongly believe that everyone should have access to legal advice.  Leveraging the online tools available opens the doors across Ontario.

Lower Overhead

An office is expensive. There’s the space itself, furniture, utilities,  supplies, maintenance, and the list goes on.

When you have fewer overhead expenses, there are more funds that can be put to work for the company or client. While many law firms still operate solely at an office, we’ve decided that keeping our overhead low was worth it when it meant better service for our clients.

Again, this is part of our pledge to ensure that legal services are accessible to as many as possible.

However, you may wonder if an electronically signed document has the same weight and legality as one signed in person.

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Electronic Signatures

The short answer is, yes. Electronic signatures are governed by the Ontario Electronic Commerce Act (ECA) and defined as “electronic information that a person creates or adopts in order to sign a document and that is in, attached to or associated with the document.” 

In most circumstances, an electronic signature is just as valid and legal as a “wet signature” or one made in person. As with anything, there are certain circumstances that require special consideration. We will address the use of electronic signatures in a future article.

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Working with a modern law firm

At Beeksma Law, excellence is our minimum standard. That means that we keep working with new tools to adapt to changing circumstances and leverage technology to provide the best service possible.

If you would like to learn more and see the difference for yourself, we would encourage you to book a call here.