Making a will

There are generally two types of willsWills A legal document that establishes what you want to happen to your money, property and other assets after your death. A will can also set out plans to take care of your children or other family members who count on you financially.+ read full definition: handwritten (called a “holograph” will) and typewritten. Each province has its own different requirements for what makes a will valid. The requirements for Ontario are described below.

1. Handwritten will

For a handwritten will to be valid, it must be entirely in your own handwriting, signed by you and dated. No witnesses are necessary.

If you choose to hand-write your own will, have a lawyer review it. What you think are clear directions may not be to someone else, and your will could be contested or misinterpreted or have consequences that you did not contemplate.

2. Typewritten will

A typewritten will is usually prepared by a lawyer. It must be signed by you and witnessed by two individuals who are both there when you sign it. These individuals cannot be beneficiaries or spouses of beneficiaries under your will. 

For the duration of the COVID-19 state of emergency, Ontario is allowing virtual witnessing, by way of “audio-visual communication technology” provided that one of the two witnesses is licensed by the Law Society of Ontario as either a lawyer or paralegal. Audio-visual communication technology is any electronic means of communication in which all participants can see, hear, and communicate with each other in real time. 

If a typewritten will is not properly witnessed, it is invalid and provincial estate laws will apply unless you have an earlier, valid will.

Your mental capacity when making your will

It is largely a question of fact as to whether a person has the necessary cognitive abilities to execute a valid will. The person must understand and appreciate:

  • the nature of the act of making a will and its effects
  • what are one’s assets and liabilities (i.e. the extent of the property being disposed of) and
  • An appreciation of the claims of persons who would normally expect to benefit under the will.

You want to avoid situations where someone challenges the validity of your will on the basis that you lacked the necessary capacity.

Age in and of itself does not mean someone is not capable of making decisions about their property. Ontario’s Substitute Decisions Act provides that everyone aged 18 or older is presumed capable of making decisions about his or her property. A person aged 100 is presumed capable just like someone aged 20. However, such a presumption may be rebutted.

For this reason, it is best to prepare a will in advance of it becoming questionable as to whether you have sufficient mental capacity due to physical illness or conditions that can impair cognitive abilities such as vascular dementia or alzheimer’s.

Third parties (especially those who are not beneficiaries under the will) who can prepare notes of your cognitive abilities at the time you provide instructions and sign the will may be helpful. For example, a doctor can prepare notes on your physical health and mental capacity. These notes may help prove that you were mentally fit to make a will if it is later challenged. A lawyer’s professional obligations also require them to ensure that their client has the necessary capacity to give instructions on their testamentary intentions and execute a will.

A person can be legally incapable of making a will at any time from birth to death. Conditions that strike early in life or catastrophic accidents occurring in childhood can deprive an individual of capacity before he or she attains the age of 18. In these cases, the property of these individuals will pass on intestacy, as guardians for property in Ontario cannot make a will on behalf of the person whose property they manage.

Key points

You can draft your will in two ways:

  1. Handwritten (called a “holograph” will)
  2. Typewritten (usually prepared by a lawyer)
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