Estate Planning

Step 5: Execution Requirements

By Hull & Hull LLP

You've finalized your draft Will.  Everything appears to be in order - you just need to "sign it up".  You ask your lawyer if he or she can just send you the Will so that you can have it witnessed at home.  This seems to be straightforward enough - what can possibly go wrong?

Centuries of litigation attest to the fact that things can - and do - go wrong when a will is not validly executed.

We've written in great detail on our blog (and spoken on our podcasts) about the strict legal requirements provided for in Ontario's Succession Law Reform Act, R.S.O. 1990 ("the SLRA").  Ian Hull also discusses negligence issues and his suggestions for a proper will signing in an issue of Law Pro magazine here.  In a nutshell, the testator must sign or acknowledge the signature in the presence of two or more witnesses, present at the same time.  Today's blog will consider interesting exceptions and anecdotes to the strict compliance rule governing execution formalities in Ontario.  Unlike other jurisdictions across Canada and the rest of the world, Ontario does not have a "substantial compliance" or "harmless error" rule, meaning that if your Will is not executed in accordance with the requirements it may be invalidated. 

A "soldier's will" does not require strict compliance with execution requirements, provided the person is on active service with the forces, either naval, land or air force, or a sailor when at sea or in the course of a voyage.  The reasons for the exception to the rule in these cases seems obvious. 

Witnesses are required to sign after, not before, the testator.  Also, the testator must be able to actually see the witnesses sign, if he so chooses.  Therefore in the case of a testator who is unwilling to move and who is not facing the witnesses, the will may be invalidated.  Also, in the case of a holograph will in Ontario (which does not need to be witnessed but must be in the testator's handwriting) the legislation does not specify the nature of the writing, only that it be "in writing". This means in can be written in ink, paint, pencil and not only on paper but valid holograph wills have been prepared on a tractor's fender (which the testator prepared as he lay pinned and dying under his tractor), a petticoat, and even on an empty eggshell.

To play it safe, always execute your will under the supervision of your lawyer and ensure that  the formal requirements of Ontario's SLRA are observed.

Sarah Hyndman Fitzpatrick

Full post as published by Toronto Estate Law Blog on December 05, 2008 (boomark / email).