What makes a Will valid in Ontario?
Understanding
Those who are unfamilar with wills and who have never had one often typically wonder:
- If I want a will, how am I supposed to get it prepared?
- Is a lawyer required?
- Is there an age requirement? Is there a property requirement?
- How do I make it "final"? Do I just sign it?
- Where do I sign it? Do I have to sign it at a special location?
- Do I need to sign it on just one page or on every page?
- Whom do I sign it with?
- Do I need witnesses? Who is allowed to be a witness?
- Does it need to be stamped or sealed?
Basis
The law regarding wills in Canada is set at the provincial level, with each province having its own wills statute.
The statute for the province of Ontario is the Succession Law Reform Act, R.S.O. 1990, c. S.26.
We will directly examine the sections of it that give answers to these questions and the overall question of what makes a valid will in Ontario.
As we proceed, know that
- ellipses - ... - represent parts omitted intentionally due to be being considered extraneous,
- square brackets - [] - represent a paraphrasing of original parts for brevity, and
- the word "testator" means "will-maker" or "person whose will it is".
An essential summary is given at the end of the article if you wish to skip the deep dive.
Age
A person must be an adult in order to make a will. This age limitation coincides with general limitations on the competency of minors to deal with property.
There are some obscure exceptions to the requirement to be an adult. A will made by someone who is a minor may still be valid if they are married, have been married, note in the will that it only come into effect upon marriage to a named person and then do get married to them, are a member of the Canadian military, or are a sailor at sea.
8 (1) A will made by a person who is under the age of eighteen years is not valid unless at the time of making the will the person,
(a) is or has been married;
(b) is contemplating marriage and the will states that it is made in contemplation of marriage to a named person except that such a will is not valid unless and until the marriage to the named person takes place;
(c) is a member of a component of the Canadian Forces, (i) that is referred to in the National Defence Act (Canada) as a regular force, or (ii) while placed on active service under the National Defence Act (Canada); or
(d) is a sailor and at sea or in the course of a voyage.
Execution
The conventional form of proper execution - that is, proper signing and witnessing - of a will is that it must be drafted in writing, signed at the end by the will-maker in the simultaneous presence of two (2) witnesses, and then signed by the said witnesses in the presence of the will-maker.
3 A will is valid only when it is in writing.
...
4 (2) ... a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
The requirement of two witnesses to the signing serves to ensure that it did happen and was not a forgery. The requirement provides a baseline assurance; one remains free to challenge in Court a signing where the witnessing was suspect.
There is no requirement of a lawyer's involvement - either in preparation or signing and witnessing. A lawyer's role has traditionally been to advise - to take instructions and draft the Will using common will templates and software.
However, now, due to the convenience of the internet, we provide direct access to the will-drafting software that a lawyer would use, cutting out the need for one.
Thus one is legally free to choose whether to complete a will through a lawyer, a traditional paper will kit, or a modern will-drafting platform such as ours.
There is no requirement of any notarization, stamp, or other special marking beyond the validation provided by the will-maker and the witness' signatures.
There is no specified minimum property requirement to write a will. A will speaks to "what the person owns at the time of their death, however much it may be".
Note that the rule that a will-maker sign their will has an alternative part. Instead of signing their will themselves as one normally would, a will-maker may direct another person to sign their will on their behalf and acknowledge it as such in front of the witnesses. An otherwise mentally capable and communicative will-maker might do such a "substitute signing" where they physically cannot grip a pen and sign for themselves due to disability or deficiency in the hands.
Remote Execution
It has normally been required that witnessing be done in-person: the will-maker and the two witnesses must be physically present together, in front of each other, for the signing event.
In 2021, during the peak of the COVID outbreak, remote witnessing of a will became allowed.
The definition of "presence" was expanded to allow for not just witnessing in-person but witnessing by live videoconferencing so long as at least one witness was a legal professional.
This would necessitate signing in "counterparts" and it was allowed - separate copies of the will for each of the will-maker and witnesses to sign their portion individually at their end could then be read together as a bundle representing a single fully signed copy.
4 (1) In this section, “audio-visual communication technology” means any electronic method of communication which allows participants to see, hear and communicate with one another in real time.
...
(3) A requirement ... that witnesses be in the presence of the testator or in one another’s presence ... may be satisfied through the use of audio-visual communication technology, if,
(a) at least one person who acts as a witness is a [lawyer or paralegal];
(b) the making or acknowledgment of the signature and the subscribing of the will are contemporaneous...
...
(4) For the purposes of clause (3) (b), signatures and subscriptions ... may ... be made by signing or subscribing complete, identical copies of the will in counterpart, which shall together constitute the will.
(5) For the purposes of subsection (4), copies of a will are identical even if there are minor, non-substantive differences in format or layout between the copies.
Witness Requirements - Competence
There is no explicit language that a witness be of a certain age or be competent to prove its execution. On the contrary, a will may survive and be saved against a witness who fulfills neither of these two.
11 Where a person who attested a will was ... or ... has become incompetent as a witness to prove its execution, the will is not on that account invalid.
Witnessing Exceptions
The rule that there be witnesses is relaxed in certain cases.
A will signed by a military member on active duty or a sailor at sea does not require witnesses to be valid. This is understandable for practical reasons which policy recognizes.
A will that is entirely in the will-maker's handwriting with no computer-printed portions and that they sign does not require witnesses to be valid. This is known as a "holograph" will.
5 (1) A person who is,
(a) a member of the Canadian Forces placed on active service under the National Defence Act (Canada);
(b) a member of any other naval, land or air force while on active service; or
(c) a sailor when at sea or in the course of a voyage,
may make a will by a writing signed by him or her or by some other person in his or her presence and by his or her direction without any further formality or any requirement of the presence of or attestation or signature by a witness.
...
6 A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.
Alterations
Any subsequent alteration made in a will must itself be properly signed to and witnessed underneath it, to the side of it, in the closest margin to it, or otherwise nearby it, or concluding a memo referring to it.
18 (2) An alteration that is made in a will after the will has been made is validly made [and has effect] when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made, (a) in the margin or in some other part of the will opposite or near to the alteration; or (b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.
Foreign
Ontario will liberally accept as valid a will from outside of Ontario or by someone from outside of Ontario if the will satisfies the requirements of the place where it or the will-maker is from.
37 (1) ... a will is valid ... if ... it complied with the internal law of the place where,
(a) the will was made;
(b) the testator was then domiciled;
(c) the testator then had his or her habitual residence; or
(d) the testator then was a national if there was in that place one body of law governing the wills of nationals.
Constructive Validity
A will, will-like document, or alteration in a will that was not made or executed properly but is otherwise genuine may be retroactively deemed as valid, but only upon a lengthy, costly, improbable application to Court.
21.1 (1) If the ... Court ... is satisfied that a document or writing that was not properly executed or made ... sets out the testamentary intentions of a deceased or an intention of a deceased to ... alter ... a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the ... alteration ... of the will of the deceased, as if it had been properly executed or made.
This flexible remedy provision was added during COVID in the name of access to justice along with those allowing remote execution.
Witness & Substitute Signer Requirements - Conflicts of Interest
Prohibitions
On an otherwise valid will, a witness or a witness' spouse should not be a beneficiary under the will receiving any gift beyond a mere repayment of debts. If they are then their gift is void.
12 (1) Where a will is attested by a person to whom or to whose then spouse a [gift], except ... payment of debts, is thereby given or made, the [gift] is void so far only as it concerns, (a) the person so attesting; (b) the spouse; or (c) a person claiming under either of them, but the person so attesting is a competent witness to prove the execution of the will or its validity or invalidity.
In the same way, a substitute signer or a substitute signer's spouse should not be a beneficiary under the will receiving any gift beyond a mere repayment of debts. If they are then their gift is void.
12 (2) Where a will is signed for the testator by another person in accordance with section 4, to whom or to whose then spouse a [gift], except ... payment of debts, is thereby given or made, the [gift] is void so far only as it concerns, (a) the person so signing; (b) the spouse; or (c) a person claiming under either of them, but the will is not invalid for that reason.
Rationale
The rule that a witness, a substitute signer, or their spouse should not be a beneficiary does not invalidate a will fully upon not being properly observed but does invalidate it partially as to the improper individual's gift, which might as well be just as bad and may ruin a will-maker's intended plan for their assets.
The rule is a directed safeguard against the scenarios of malicious actors i) outright forging a person's signature, or without direction applying a substitute signature, on a will falsely claimed to be signed or acknowledged in front of them that has them as beneficiaries or ii) otherwise coercing or unduly influencing a person into signing, or directing and acknowledging substitute signing of, a will in front of them that has them as beneficiaries. The rule's consequence necessitates using as witnesses and substitute signers independent persons who have no personal stake or role in the will and thus no incentive to fabricate or force its signing, presumptively ensuring the signing's veracity and independence.
Remedy
A will that by mere mistake and with no undue influence had a witness, a substitute signer, or their spouse as a beneficiary and thus had their gift voided may have such gift retroactively "cured" as valid, but only upon a lengthy, costly, uncertain application to Court.
12 (3) Despite anything in this section, where the ... Court ... is satisfied that neither the person so attesting or signing for the testator nor the spouse exercised any improper or undue influence upon the testator, the [gift] is not void.
Extended Summary
A will shall be valid in Ontario where:
- If the will was made outside of Ontario or by someone from outside of Ontario, it satisfies the requirements of the place where it was made or the will-maker was domiciled, resident, or a national of.
- If not, the will is
- drafted in writing;
- made by a will-maker who at the time either is eighteen (18) years of age or older or, if under eighteen years of age, is married, has been married, notes in the will that it only come into effect upon marriage to a named person and then does get married, is a member of the Canadian military, or is a sailor at sea;
- signed at the end by the will-maker in any case or a substitute signer in their presence and at their direction in the case where the will is not entirely in the will-maker's handwriting; and,
- if the will is not entirely in the will-maker's handwriting and the will-maker is neither a military member on active duty nor a sailor at sea,
- in the simultaneous presence of two (2) or more witnesses, either in-person or over live videoconferencing with at least one witness being a lawyer or paralegal if the latter, so signed by the will-maker or acknowledged by the will-maker as having been signed by the will-maker or the substitute signer, and,
- signed by two (2) or more of the said witnesses in the presence of the will-maker, with, if over live videoconferencing, such signing required to be contemporaneous with the will-maker's signing or acknowledgment and with counterparts being allowed.
- If not properly meeting any set of formal requirements, the will is accepted as genuine by the Court upon application.
A subsequent alteration in a will shall be valid as per the above except that where there is a requirement of execution there be one made nearby it or concluding a memo referring to it.
A beneficiary under an otherwise valid will should not be a witness, a witness' spouse, the substitute signer, or the substitute signer's spouse. If they are then their gift is void against them or anyone claiming under them unless they and their spouse are accepted as not having exercised undue influence upon the will-maker by the Court upon application.
Streamlining
This deep dive has shown the full web of the rules, replete with exceptions, alternatives, and remedies to an underlying conventional standard of will execution.
These exceptions and the like are obscure. They are interesting tidbits of information to know - but for academic purposes.
- At Your Final Will we recommend all young adults to prepare a will, though that does not extend to recommending a minor be mindful of it and contemplate reliance on antiquated categories of child solider, sailor, and bride.
- While the alternative of substitute signing is available at law it is not something that we make provision for for the iota it might apply to. Wills are signed by their makers per the normal course.
- Remote witnessing was made a possibility under the social distancing mandates of COVID, and that is all that it should remain an artifact of; signing your will, your single testament, should be done by having your witnesses over to be with you, in the canonical way it's always been done and that was not a hassle except during a strange and brief period and that has no worthwhile reason to experiment and deviate from.
- While a fully self-handwritten will requiring no witnesses sounds like a convenience, it is completely unconventional and is worthless as to its contents for not having been prepared by a credible source.
- While the law provides for valid alterations, they should never be made. There is no shortage of cases of shoddy, hasty, or improper alterations being held invalid and of no effect, often even invalidating the will beyond the alteration itself. It is never worth it. This also applies to a handwritten addition made to a printed will before it is executed; unlike with the printed body, it later may not be certain whether the addition was present at the original execution or was made afterwards improperly, without its own execution. Therefore, overall, one should never make handwritten changes to a will. All intentions should be printed in, and where intentions need an update, one should make a new will through a provider of their choice.
- Curative court applications exist for defective executions but with straightforward instructions both clearly given and understood, they will never be.
Your Final Will does not deal in these exceptions and provides the conventional or standard form of will - machine-generated, Ontario-local, self-signed, doubly-witnessed, in-person, fully-compliant.
Essential Summary
With those obscurities and fallbacks excluded, we are left with the following distillation:
- A will made outside of Ontario or by someone from outside of Ontario shall be valid if it satisfies the requirements of the place where it or the will-maker is from. Otherwise, a will made in Ontario shall be fully valid if it is
- singularly computer-printed, with no subsequent additions or alterations any time in handwriting or otherwise;
- signed at the end by the will-maker, who is then eighteen (18) years of age or older, in the simultaneous presence of two (2) witnesses; and,
- signed by the said witnesses in the presence of the will-maker.
- A witness or a witness' spouse should not be someone who is a beneficiary under the will. If they are then their gift is void.
Bottom Line
Here is the summary translated into actionable steps to having a valid will:
- Obtain a will with us at Your Final Will by clicking Start for Free. The purchased package contains a set of instruction manuals that set out how to sign in the manner that follows.
- Think of two (2) witnesses. They should not be anybody whom you've included in your will, and their spouse should not be anybody whom you've included in your will. Good candidates would be someone like a friend, or a neighbour, or a co-worker.
- Contact them and arrange a date and time for them to come to you in-person to witness your will.
- On that date, print your will from your computer and have it ready. Do not make any additions or changes to it.
- Invite your witnesses in. Give everyone a blue pen.
- Turn to the last page of the will.
- Print the information in the "city or town", "province or territory", "month", "date", and "year" fields.
- In front of both of your witnesses, with them watching you do it, sign in the signature field that has your name.
- Pass the will over to your witnesses.
- In front of you, on the same last page, watch each of them sign in a witness signature field and print their personal information in the "Name", "Address", and "Occupation" fields that are under their signature.
- On all pages before the last, initial in the space for your initials in the bottom right corner, and have your witnesses initial in the spaces for them. Such initialing on every page before the last is not legally required but is a universal standard.
To see more from our instruction manuals click here.
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