Area of Law: Wills, Estates and Powers of Attorney
Answer # 141
Formal requirements of a WillRegion: Ontario Answer # 141
The purpose of a Will is to make sure that your property and finances can be wrapped up in an orderly way when you die. Most Wills have the same general structure. However, depending on your situation, some parts of a Will may or may not be needed. If your situation is complicated, you will need a lot of extra parts to make sure that your Will is complete and legal.
A Will does not have to be on a special form. It just needs to be a written document of some kind. Although it can be handwritten, most Wills are professionally prepared and are typed.
Your name and personal details
Most Wills follow a basic structure. First, a Will begins by naming the person who is making the Will. The person making the Will is called the “testator” (female testators were historically and may sometimes still be identified as a “testatrix”). Your name in your Will may include your name at birth, married names, and nicknames. Many Wills also state your occupation.
Statement revoking prior Wills
The second part of a typical Will is a statement that revokes all prior Wills. This cancels any Wills you wrote in the past, so that you will not have two conflicting Wills.
Statement naming your executor
Next, a Will names a personal representative. A personal representative is also commonly called an “executor.” This is the person who will carry out your wishes. Anyone who is over the age of 18 and mentally competent can be your personal representative. The responsibilities of a personal representative include arranging your burial, proving that the Will is legal, collecting information from family members, making a list of all the things you own, calculating all the money that you owed to people, and giving out gifts to the people set out in the Will. People who will receive gifts under your Will are called “beneficiaries.”
List your property and who will receive it
After you have named your personal representative, you can begin to write the main part of your Will. This is where you name the different people or organizations who will receive the things you own when you die. You should also name a second person for each gift in your Will. This second person is called an alternate beneficiary. They receive the gift if the main beneficiary dies before you.
Finally, a Will should have what is called a “residue clause.” This is a statement near the end of the Will that names a person or organization as the beneficiary of anything not listed in your Will or left over after all debts have been paid and all other gifts distributed.
Date and sign the Will, and have it witnessed
The Will should be dated and signed at the bottom. If the Will is typed, then two witnesses must also sign at the bottom and initial each page of the Will. They will also need to sign a sworn statement, called an affidavit, that confirms that you signed the Will in front of them. If you hand write your entire Will from beginning to end, then no witnesses are needed.
In Ontario, Wills and Powers of Attorney can be signed and witnessed virtually, meaning video technology can be used for witnessing signatures, as long as one of the people witnessing is a licensed Ontario lawyer or paralegal. The testator (maker of the Will) and the witnesses must sign at the same time, and, the electronic method of communication used must allow all participants to see, hear and communicate with each other in real time.
For more information about Wills, visit the Ontario Ministry of the Attorney General website.
New rules for previously ‘invalid’ Wills
Bill 245 Accelerating Access to Justice Act, 2021 came into effect January 1, 2022, making a number of changes to the Succession Law Reform Act (SLRA).
One important change is that previously, if a Will was not perfectly executed and did not follow every single rule, it was considered “technically invalid’.
As of January 1, 2022, courts can deem a Will that was ‘technically invalid’ as legal. For example, courts could declare a Will that was only signed by one witness instead of two legal. This is known as “substantial compliance”.
Getting the legal help you need
Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
You now haveoptions: