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Wills & Estates: Wills

1. Formalities

To be valid, a will must be in writing. In addition, in most circumstances:

  1. it must be signed at its end by the testator or by some other person in his or her presence and by his or her direction;

  2. the testator must make or acknowledge the signature, as the case may be, in the presence of two or more attesting witnesses present at the same time; and

  3. two or more of the attesting witnesses must subscribe the will in the presence of the testator.

A beneficiary named in a will or the spouse of such beneficiary cannot act as a witness to the signature of the will in issue, or the gift to such beneficiary will be invalid.

2. Capacity

For a will to be valid, at the time of its execution, a person must:

  1. know that he or she is making a will;

  2. be capable of understanding the persons having moral claims to the property in issue; and

  3. be capable of understanding the nature and extent and probable value of his or property.

3. Holograph Wills

A person does not need to complete a will in accordance with the formalities described at paragraph 1 above. In the alternative, a testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

4. Memoranda

There are two types of memoranda:

  1. The first is used to express a wish by the testator that is not binding on the executors. This kind of memorandum is often used in relation to the distribution of household items having relatively modest monetary value; and

  2. The second is intended to be legal and binding on trustees. As a result, this kind of memorandum must be incorporated by reference into the terms of the will, meaning that it must be in existence and signed when the will is signed. This kind of memorandum may be used to address long lists of bequests or of fee arrangements for an executor, for example. An amendment of this kind of memorandum may occur only by a subsequent will or codicil.

5. Revocation of a Will

A will or part of a will is revoked only by:

  1. marriage (unless a contrary intention appears in the will, or in other special circumstances);

  2. another will or codicil, that includes a statement of revocation;

  3. an instrument in writing, including a statement of revocation; or

  4. burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it (this is a two-part test, of act and intention).

If a will is lost while in the possession of a testator, the legal presumption is that the testator destroyed it with the intention of revoking same. The would-be-executor of the will has the burden of proving that there was no intention of revocation.

The test of capacity for revoking a will is the same as that for making a will, as set out at paragraph 2 above.

Unless a contrary intention appears in the will, if the testator divorces after the making of the will:

  1. devises or bequests to the former spouse

  2. any appointment of the spouse as executor or trustee, and

  3. any power of appointment in favour of the former spouse,

will be revoked, and construed as if the former spouse had predeceased the testator. Note that this automatic revocation occurs as a result of divorce, and not as a result of separation. As a result, a separated person needs to be proactive in revising his or her will, particularly if any significant period of time elapses between separation and the granting of a divorce.

6. Circumstances in which a Will should be Updated

Mere passage of time does not invalidate a will or any of its provisions. However, changing circumstances may result in some of the dispositive provisions being no longer appropriate. While not intended to constitute an exhaustive list, the following are examples of changing circumstances that warrant a will review:

  1. Anyone mentioned in the will changes his or her name;

  2. An executor dies or becomes unsuitable to act due to age or ill-health;

  3. A beneficiary dies;

  4. Property is specifically bequeathed that is no longer owned;

  5. There are births or adoption in the family;

  6. There is a change in the marital status of the testator or of a beneficiary;

  7. Estate assets and/or their value alter considerably; and

  8. The testator, executor and/or beneficiary moves outside the Province of Ontario and/or changes citizenship.