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Last Will and Testament: Legal Requirements

Last Will and Testament lawyer Michael Carabash

Wills: Legal Requirements in Ontario

Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice with respect to a Will you should seek professional assistance (e.g. make a post on Dynamic Legal Forms). We have Toronto, Ottawa, Hamilton, Mississauga, Brampton, and other Ontario lawyers registered on the website who can answer your questions or help you.

What are the legal requirements for a Will to be valid?
There are only a few requirements for a Will to be valid and enforceable. But if you don’t do these basic things properly, the Will can be contested through litigation, which will cost thousands of dollars (or more), destroy relationships, waste years, etc.

First, in Ontario, for a Will to be valid, it must be in writing. So says the Succession Law Reform Act.

Second, a Will must be made by a legally competent person (i.e. the Testator / Testatrix must be 18 years old or older and mentally capable of making a Will). This is often a litigious issue: some will claim that the person making the Will was not sufficiently competent to make the Will as they did not understand the purpose and effects of making the Will. Worth mentioning is that a person under 18 years old CAN make a Will if he or she is married or if he or she is in the Canadian Armed Forces.

Third, the Testator / Testatrix must sign the Will before two witnesses who are both present during signing. The witnesses must also acknowledge that this was done – typically through an affidavit attached to the Will. It is also a good idea to have these affidavits in case the Will needs to be “probated” through the courts (i.e. legally processed to establish the validity of a Will before a judicial authority): if probate is necessary, and many years have passed since the Will was signed and witnessed, the witnesses will need to be located for the purposes of giving affidavits. To avoid wasting time and money locating witnesses, it is best to simply have them sign affidavits at the same time they witness and sign the Will. It is not necessary for witnesses to see or read any part of the document. The Testator / Testatrix’s signature must be at the end of the document, but can follow a blank section on the page after the concluding words of the Will. Neither of the witnesses can be beneficiaries or their spouses, or else transfers of real or personal property to them are voided: section 12 of the Succession Law Reform Act.

It is a good practice for all parties to initial in the bottom right hand corner of every page leading up to the signing page. While there may be other requirements for a Will to be valid, those requirements are often examined and dealt with by a lawyer who is trained and experienced in making the Will as litigation-proof as possible.

Worth mentioning is that “Holographic Wills” are acceptable and do not require the presence or attestation or signature of a witness to be valid: section 6 of the Succession Law Reform Act. Holographic Wills are wholly written by the testator in his or her handwriting and signed and dated. People are cautioned against writing their own Will in this manner as it may lead to the Will being challenged.

By the way, if you need a Will and want to leave everything to your surviving spouse, you’ve come to the right place:

Last Will and Testament (Ontario): Outright Distribution to Spouse

This legal form can be used by a Testator or Testatrix (i.e. a person who is making a Will) to appoint an Estate Trustee to manage their final wishes, transfer the residue of their estate (i.e. their leftover assets after debts have been paid off) to their surviving spouse, and appoint a guardian / custodian for their minor children. This Last Will and Testament also comes with affidavits for witnesses to swear / affirm (great for probate!). Best of all, this Last Will and Testament comes with a FREE VIDEO GUIDE (watch a useful example of how this legal form can be customized), a FREE DL GUIDE (read helpful information about this legal form), and another FREE DL GUIDE that offers valuable insight into how contracts can be challenged) What are you waiting for? Go to Dynamic Legal Forms. And if you DO need a lawyer and need some legal advice, simply make a post and get FREE quotes from Ontario lawyers focusing on the area of law you require!

This information and this sample video guide is NOT legal advice and is provided for informational purposes only. If you need an Ontario lawyer, go to Dynamic Legal Forms and make a post.

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