You can create a valid will if you write the entire document in your own handwriting, date it, and sign it. Do not put any additional gifts or instructions below your signature. That is it! Handwritten wills do not require witnesses.
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.
In Ontario, a typewritten will must be:
- Signed by the testator
- Witnessed by two witnesses who
- were present when the testator signed; and,
- Are not the executor, or a beneficiary, or the spouse of any executor or 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.
A typewritten ‘will’ that is not signed by two witnesses is not a valid will and will result in an intestacy.
The Affidavit of Execution
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.
An affidavit is a sworn statement, ‘commissioned’ by a commissioner for oaths (notary public, lawyer, or individual who has been designated a commissioner). This affidavit must be sworn by one of the two witnesses to the signing of the will by the testator. Usually it should be sworn at the time the will is signed by the testator – otherwise, someone has to try to track down the witnesses years after the fact. However, it can be sworn after the fact, and if the will is signed when no lawyer/notary/commissioner is present one of the witnesses can swear the affidavit of execution as soon as practicable later.
The original Will must be stamped on the back of the last page and identified as an exhibit to the affidavit of execution (and is usually attached to the affidavit of execution). A lawyer/notary/commissioner in Ontario should know the rules in Ontario.
If there is no affidavit of execution and no witnesses to the Will can be located to create one (which is common for holograph wills as there are often no witnesses at all) all is not lost, but more effort is required. For a holograph Will, an affidavit will be required from someone who knew the testator well and knew their handwriting and signature and is thus is able to attest to the Will and the testator’s signature on the Will. For a type-written Will, an affidavit will be required that details the unsuccessful search that was carried out to locate the two witnesses to the Will, and an affidavit will be required from someone familiar with the signature of the testator (such as an employer or bank official) who has a signature on file that they can compare with the signature on the Will.