To be (testate) or not to be: An overview of Will validity in Ontario

The emergence of the global coronavirus (COVID) pandemic has created an atmosphere of uncertainty and ambivalence about the future. For many Ontarians, COVID has forced them to turn their minds to estate planning for the first time, and has prompted questions about the need for a Will, how to make one, and how assets and gifts can be properly conveyed. In Ontario, Wills and the law of succession are covered under the Succession Law Reform Act (SLRA). This Act sets out the specific requirements to which testamentary documents must conform in order to be valid. Where a testamentary document does not meet the requirements under the SLRA, it can cause devastating consequences for your loved ones after your death.

Under the SLRA, there are three forms of accepted Wills in Ontario, all of which have differing validity requirements. The first type of Will is the active services Will, which is limited to those on active service in the Canadian Armed Forces.1 The second is a “Holographic Will”, which is a Will written entirely in the handwriting of the testator. For this Will to be valid, the entire Will must be handwritten by the testator, there must be a clear indication of testamentary disposition, and it must be signed by the testator at the end of the document. Where a Holographic Will meets these requirements, no other formalities, such as witnessing, are required. Lastly, the most common type of Will is one prepared by a solicitor that complies with all of the required formalities under the SLRA, including proper witnessing, signing formalities, and includes an Affidavit of Execution.

While the Holographic Will is the easiest Will to create when done properly, it carries a high level of risk when it comes to ensuring that one’s property is properly devised, an executor is properly appointed, and the Will can be appropriately probated, where required. For example, where a Holographic Will must be probated, the estate trustee is required to undertake additional steps and expenses in order to properly prove the Will’s validity, including obtaining supplementary documents to certify the deceased’s handwriting. In contrast, a solicitor-prepared Will allows you to create an individualized estate plan tailored to your assets, tax concerns, and testamentary wishes. It also provides you with the opportunity to meet with a lawyer one-on-one and receive answers to your estate-planning questions and concerns, including questions about probate, estate taxes, and how to ensure your loved ones are properly provided for.

At the end of the day, estate planning can be a very arduous and confusing process without proper assistance. It is highly recommended that you consult with an estates lawyer to answer your estate-planning questions, and to ensure that your loved ones are not unnecessarily burdened with preventable estates complications after your passing.

Notes: 1Also carveout for sailor at sea or in the course of a voyage.