Rules for valid will execution

(a) What are the formalities for the proper execution of a will in Ontario?

Summary

A will must be in writing. It must be properly witnessed by two or more witnesses in the presence of the testator (unless it is a holograph will).

Discussion

A will must be in writing (SLRA s. 3). A will must be signed by the testator (the person who is executing the will), or by some other person if the person is in the presence of the testator and signs at his or her direction (SLRA s. 4(2)(a)). The will must be signed by the testator in the presence of two or more attesting witnesses who are both present at the same time (SLRA s. 4(2)(b)). The two or more attesting witnesses must subscribe the will in the presence of the testator (SLRA s. 4(2)(c)).

(b) How many witnesses are required?

Two witnesses are required (SLRA s. 4(2)), except if it is a holograph will (SLRA s. 6).

(c) Can a will be executed virtually and if so, what are the rules?

Summary

Wills cannot be executed virtually, but they may be witnessed virtually.

Discussion

Wills cannot be executed virtually, and electronic wills are not allowed. However, the witnesses to a will may satisfy any requirement to be present by using audio-visual communication technology. If the will is witnessed virtually, the following rules must be followed:

1. The normal rules regarding witnesses and subscribing the will must be followed.

2. The testator and witnesses must be able to see, hear and communicate with one another in real time by means of audio-visual communication technology.

3. At least one person who acts a witness must be a licensee within the meaning of the Law Society Act (SLRA s. 4(3)(a)), which means either a lawyer or paralegal, provided that their license has not been revoked).

4. The making or acknowledgement of the signature and the subscribing of the will must be done contemporaneously (SLRA s. 4(3)(b)). If the same copy of the will is being signed by the witnesses, both witnesses must be present with the testator at the same time (virtually or not).

5. The required signatures may be done by having each person signing a complete, identical copy in counterpart (SLRA s. 4(4)). If there are minor, non-substantive differences in format or layout, the copies may still be considered identical (SLRA s. 4(5)).

Electronic wills are not allowed (SLRA s. 21.1(2) and Electronic Commerce Act).

(d) Is a will invalid if it does not meet the proper execution formalities?

Summary

Non-compliance with the execution formalities of the SLRA will not necessarily render a will invalid.

Discussion

Prior to January 1, 2022, Ontario was a strict compliance jurisdiction, meaning a will is invalid if it does not meet all the formal requirements of execution under the SLRA, and the Court does not have authority to “validate” a will which does not meet these requirements.

A new rule in the SLRA now makes Ontario a substantial compliance jurisdiction. Accordingly, the Court may, on application, validate a will that does not meet all the required formalities if it can satisfy itself that the will sets out the testamentary intentions of the deceased (see SLRA s. 21.1).

(e) Is a holograph will permitted in Ontario and if so, what are the rules?

Summary

Holograph wills are acceptable in Ontario.

Discussion

The SLRA provides that a testator may make a valid holograph will where it is wholly handwritten by him or her and is signed and dated by him or her. It need not follow any other formality or be in the presence of a witness (see SLRA s. 6).