Formal Requirements to make Will in Ontario
There are certain requirements that must be met in order for a will to be valid. Generally, all Canadian provinces and territories have the same or similar formal requirements. In general, for a will to be valid it must be signed by the testator and two witnesses who do not benefit under the will.
Handwritten wills, also called holograph wills are also considered as valid wills by a court if the formal requirements are met. Holograph wills are legal in Alberta, Manitoba, Saskatchewan, Ontario, Quebec, New Brunswick and Newfoundland and Labrador but are not allowed in other provinces.
In Ontario, the rules with respect to wills, known as the formalities of execution are set out in the Succession Law Reform Act (“SLRA”). The formalities of execution require the following:
- The will must be signed at its end by the testator or another person as directed by the testator
- The testator must sign the will (or acknowledge their signature) in the presence of two or more witnesses
- Two witnesses are required unless the will is entirely in the testator’s own writing, or the testator is an active member of the Canadian Forces, naval, land or a sailor, having executed the will while at sea
- The testator must be no less than 18 years old, unless they are making a will in contemplation of marriage, is a member of the Canadian Forces, or is a sailor, having executed the will while at sea
Other Canadian jurisdictions, including Saskatchewan, Manitoba, Alberta, British Columbia and Quebec have adopted a ‘substantial compliance’ doctrine, where courts may admit wills that do not necessarily comply with all the formal requirements set out in the applicable legislation for the purposes of probate. Ontario, on the other hand, has a strict compliance regime, and wills typically need to be executed in full compliance with the SLRA to be found valid. While some recent decisions by the courts appear to be moving away from the strict compliance regime, the law in Ontario remains the same.
If you move to another province, you do not need to remake your will. However, it is wise to have your will reviewed by a lawyer in that province to see if it meets the legal requirements of the province where you will live.