You have a document made by the deceased. Is it a valid will?
Handwritten (holograph) wills & codicils
In Ontario, the requirements for a valid holograph (handwritten) will are:
- It must be entirely in the handwriting of the testator; and
- It must be signed by the testator at the bottom.
- Any gifts ‘below’ the signature are NOT valid.
Holograph wills do NOT require witnesses.
Holograph wills do NOT require a date, although it is very helpful if there is one, to establish ‘last’ will.
A codicil is an amendment to a previous will. For instance, if you want to change the executor of your will and leave everything else the same, you can do a holograph codicil very quickly and simply. To make a holograph codicil you must write the entire document by hand, date, and sign it at the bottom. If the changes you want to make are more complex than that, you really should consider making a new typewritten will – although a holograph now, followed by a typewritten as soon as practicable, is the most prudent course.
Typewritten wills
In Ontario, in general, a typewritten will must meet the following requirements (“formal compliance”):
- Signed by the testator
- Witnessed by two witnesses who
- were present when the testator signed; and,
- Are not a beneficiary, or the spouse or parent of any beneficiary.
It is good practice to have the testator and the witnesses initial each page of the will, and to identify the name, address and occupation of both witnesses.
It is not great practice to have the executor a witness (makes resisting will challenges based on undue influence difficult) but there is nothing formally incorrect about it.
A copy when the original has been lost
It may be possible to probate a copy of a Will when the original has been lost.
When the original Will is not available for probate, the testator is presumed to have revoked it by destroying it. However, this presumption can be rebutted. The crux will be proving that the testator was not involved in the loss or destruction of the original Will and that the testator did not intend to revoke the Will. For instance, it may be possible to probate a copy of the Will when the original Will has been lost by the lawyer who drafted the Will and was holding it in storage (for instance, when they ceased to practice law) or when it the executor lost the Will after the death of the testator.
We have experience successfully probating copies of Wills when the originals are not available. These applications are not easy or routine and they require skill and care. Contact us for assistance.
Not formally valid; substantial compliance?
From 2022, a ‘will’ that does not meet the formal compliance requirements may still be upheld by the Court if it ‘complies substantially’ with the requirements of a will. This is known as ‘substantial compliance’.
The move from ‘formal compliance’ to ‘substantial compliance’ is a significant change for Ontario. The details of when something that is ‘like a will but does not comply with the formal rules’ will be held to be a Will are still in flux. It is likely that the Court will require some evidence that the document was intended by the testatory to have testamentary effect and reflects the settled intentions of the testator for distribution of their estate. Thus, the substantial compliace rules are likely to assist when there are modest errors in signing or witnessing the Will; conversely, substantial compliance is much less likely to assist when the document is ‘a draft’ or a ‘note’ or ‘a text message’ – the less something looks and feels like a traditional Will, the harder it will be to convince a Court that it should nevertheless deem it to be a Will.
Probate of wills which do not meet the formal compliance requirements and must be probated under the substantial compliance test will be substantially more difficult, time-consuming and expensive. At a minimum, a hearing before a judge with a full record of supporting evidence will be required.
Of course, it is relevant to consider whether the distribution under the Will is substantially different from the distribution on intestacy. If not, then it may be quicker, cheaper and easier to simply probate on the basis that there is no Will rather than to try to get substantial compliance approval for something that does not meet the formal compliance requirements.
Handwritten changes on a typed Will
Handwritten changes made on a typed will after it is signed are often NOT valid – they are neither a valid holograph codicil nor a valid typewritten codicil. They may, however, be admissible to probate under the new ‘substantial compliance’ rules.
If the changes are made BEFORE the typed will is signed, then they should be valid.
Proving the signature
Evidence as to the validity of the signature on the Will is required in order to probate in Ontario.
In order to meet this obligation, the usual practice is to file an “Affidavit of Execution” that attaches the original Will as an Exhibit when you file to probate the Will.
Learn more about the affidavit of execution of the Will and other ways of proving the signature here.