Last Will and Testament
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 Wills and Estates matters, you should seek professional assistance (e.g. make a post on Dynamic Legal Forms).
Last Will and Testament
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This is the first of a series of MANY blogs about Wills in Ontario. Here, I’ll be discussing what a Will is and what are some of the legal requirements for a Will to be valid.
You’ve heard it many times. You need a Will! But what is a Will and why do you need one? What legal surprises (and headaches) await your loved ones if you don’t have one? Is a lawyer required to draft or witness a Will? What is a “Living Will? Is that a Will too? What about International Wills? What are some of the standard clauses that you’ll find in a Will? These and other questions are common, but not always answered. Sometimes, a lack or absence of communication can result in costly mistakes and even litigation. These blog posts will hopefully help shed some valuable insight into these and other questions that may come to mind when you’re getting serious about dealing with Wills in Ontario. Remember: if you’re looking for an Ontario lawyer to help, you can make a post on Dynamic Legal Forms. We have Toronto, Ottawa, Hamilton, Brampton and other Ontario lawyers registered.
What is a Will?
A Will (also referred to as a “Last Will and Testament”) is a legal document that basically provides instructions as to how your remaining assets and liabilities are to be dealt with. It also provides for instructions as to who will be the “Estate Trustee” responsible for administering your final wishes and identifying who your beneficiaries will be. Finally, a Will can allow you to appoint a “Custodian” for your minor children or dependents and “Guardian” of their property. According to section 1(1) of the Succession Law Reform Act, R.S.O. 1990, c. S.26, a Will also includes a “Codicil”, which is a document that cancels certain parts of your Will or adds new parts to it and which must be read together with your Will as one document. A person who makes and signs a valid Will is referred to as a “Testator” (for a man) or “Testatrix” (for a woman). When you die in Ontario, your assets are pooled together into something called an “Estate”. An Estate Trustee is appointed in the Will (and a substitute is usually appointed in case the primary estate trustee is unwilling or unable to perform his or her duties) and must:
- administer the Will by paying out liabilities (e.g. taxes owed, funeral expenses, creditors, etc.);
- manage remaining assets (e.g. selling them, gifting them, investing them, etc.); and
- distribute the residue of the estate (i.e. the remaining funds after everything else is taken care of) to the beneficiaries designated under the Will.
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. The Will is not rendered invalid (in whole or in part) simply because a witness was an Estate Trustee: section 14 of the Succession Law Reform Act; that said, it’s a better idea not to have the Estate Trustee as a witness for fear of raising the argument that the Testator / Testatrix was under duress, undue influence, etc. by the estate trustee (who may have been in a special trust relationship with the Testator / Testatrix). 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.