A will is an instrument by which a person disposes of his or her property upon their death. A will takes effect only upon the testator’s death and is only revocable until the testator’s death. The law requires that a will be executed in accordance with specific formalities. A will can be invalidated if it is not properly executed.
For a will to be valid, it must make a donative disposition of the testator’s property. Testators are free to make gifts in their will however; the gifts cannot be conditional upon an individual’s conduct or the potential upbringing of a beneficiary.
The testator exercises a power of appointment through the will when appointing an executor or estate trustee for their estate. This individual is entrusted with the task of administering the testator’s estate after the testator dies.
Wills obtained by fraud, duress or undue influence or which were made while the testator lacked the necessary mental capacity to make the will, if proven through the litigation process can be invalidated.
In accordance with Ontario’s Succession Law Reform Act (the “SLRA”), for a will to be valid, subject to a few exceptions, it requires the following:
It must be in writing;
It must be signed at the end by the testator, or by some other person in the testator’s presence and by the testator’s direction;
The testator either signs the signature or acknowledges the signature in the presence of two or more attesting witnesses, who are present at the same time; and
Ontario Courts, with a few exceptions, are reluctant to honour a will that has not been in strict compliance with the formalities required under the SLRA.
The two major exceptions to these requirements are handwritten or “holograph” wills and wills made by members of the military on active service or by sailors at sea. Holograph wills must be written entirely in the handwriting of the testator and signed by the testator at the bottom. Witnesses are not required. The formalities of execution are lax for members of the Canadian Forces making wills while on active service as well as sailors at sea.