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Formal Validity of Wills

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Ontario’s Succession Law Reform Act (the “SLRA”) outlines the formal requirements of a valid will at sections 4 to 7.
Subject to certain exceptions, a Last Will and Testament is only valid in Ontario if …

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Formal Validity of Wills

  1. 1. Formal Validity of Wills
  2. 2. • Ontario’s Succession Law Reform Act (the “SLRA”) outlines the formal requirements of a valid will at sections 4 to 7. • Subject to certain exceptions, a Last Will and Testament is only valid in Ontario if … • it is made in writing (SLRA, s 3); • it is signed at its end by the person whose property the will disposes of (the testator) or by some other person in his or her presence and by his or her direction (SLRA, s 4(1)(a)); • the testator makes or acknowledges the signature in the presence of two or more witnesses who are present at the same time (SLRA, s 4(1)(b)); • two or more witnesses sign the will in the presence of the testator (SLRA, s 4(1)(c)); and • the testator is at least 18 years old, subject to certain exceptions (SLRA, s 8(1)). Formal Requirements of a Will
  3. 3. • The position of the testator’s signature is important for formal compliance in Ontario. • Subsection 7(1) of the SLRA states that the signature must appear either “at, after, following, under or beside, or opposite to the end of the will” such that it is “apparent on the face of the will” that the testator intended to give effect to the document by signing it. • Provisions appearing in a will below the testator’s signature may not be effective. Testator’s Signature
  4. 4. • Typically, if a will is witnessed by someone who may have an interest in the estate, any gift to that beneficiary will be voided in the will. However, this will not in itself affect the validity of the will as a whole. • Subsection 12(1) of the SLRA provides that a gift made in a will is void if one of the two witnesses to the will is the beneficiary, the beneficiary’s spouse, or a person through whom the witness may claim an interest. Accordingly, if an outright gift is made to an individual and the beneficiary of that gift is a witness, the gift would be void, but the will may otherwise be valid. • If a will is written entirely in the handwriting of the testator (a “holograph will”), the requirement that the document be signed by witnesses does not apply (SLRA, s 6). The holograph will must otherwise comply with the other formal requirements for a will. Witness Signatures
  5. 5. • Many drafting solicitors will agree that it is prudent to have the testator and witnesses initial each page to a will. • This may assist in confirming that the testator read and/or knew and approved of the contents of each page. • It can also help to confirm that all pages were included as part of the will when it was executed. • Initialling each page is not required for a will to be valid in Ontario. Initialing Pages of a Will
  6. 6. • Ontario is a “strict compliance” jurisdiction – here, wills typically need to be executed precisely in compliance with the SLRA, or they will not be valid. Strict vs. Substantial Compliance
  7. 7. Thank you for reading!

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