March 21, 2019

Formal Execution of a Will

G+G Last Will

FORMAL EXECUTION OF A WILL

There are specific requirements in Ontario, set out in legislation called the Succession Law Reform Act (SLRA), that govern how a Will is to be executed in order to make it valid. These requirements are quite rigid and a document that does not comply with them may very well be found to be invalid.

Most importantly, a Will has to be in writing. Simply telling someone your wishes is not legally binding and is not considered a Last Will and Testament.

There are also witness requirements for executing a Will. The SLRA requires the testator (the person making the Will) to sign at the end of the Will in the presence of two witnesses, all together at the same time. These witnesses should not be the spouse of the testator, or a beneficiary or executor named under the Will. Impartial witnesses are best because it lessens the chances of a successful Will challenge later. The purpose of witnesses is to attest that the testator signed the Will freely and of their own choosing. A witness could be called upon after the death of the testator, in the event that the Will is challenged, to testify in court that the testator did knowingly and without influence sign the Will.

The need for the testator and the two witnesses to be together at the time of signing is clear; the witnesses must actually view the testator making their signature on the Will. Wills have been found to be invalid by the courts when it was revealed that a witness did not view a testator signing the Will completely.

A procedure that is not actually required under Ontario law, but nonetheless practiced by most Ontario lawyers, is to have both witnesses and the testator initial the bottom of each page of the Will before signing the last page. This insures that a page cannot be removed or altered at a later date.

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