Horseshoes and Hand Grenades: Close Doesn’t Count with Wills

For those who are considering preparing their own Will, relying on the advice of a friend, or even having a lawyer who practices in a different area put something together – beware! Minor deficiencies in a document intended to be a Will can undo the whole project, leaving you with a document that (incorrectly) gives you peace of mind, but doesn’t hold water.

Ontario is what is known as a strict compliance jurisdiction when it comes to the validity of Wills. This means that even a minor defect or deficiency will mean an otherwise sound document will not be a legally effective Will. Getting it most of the way right, but falling just short doesn’t count for anything.

The good news is that Ontario doesn’t have too many requirements when it comes to what constitutes a valid Will. The Succession Law Reform Act requires that a Will be “in writing”, that it is signed “at its end” by the testator (the person making the Will) or someone on their behalf at their direction, that the testator sign “in the presence of” two or more witnesses at the same time, and that “two or more” of the witnesses sign the Will in the presence of the testator.

So what does this mean?

The elements of the above requirements in quotation marks are language straight from the legislation. They are also the areas where the most issues arise:

• What constitutes “in writing”?
• Is a Will written and signed on a tablet computer valid?
• What does it mean to sign a Will “at its end”?
• Is a signature on a separate page ok?
• What does it mean to be “in the presence of” two witnesses?
• What if only one is in the room at a time, for social distancing reasons?
• When it says “two or more” witnesses, what if only one signs but the other is in the room?

Regrettably, in each of the above hypotheticals, you’re likely to end up with an invalid Will. What’s worse, you may have given the appearance and impression to others that you do have a valid Will. Your loved ones may move ahead with the mistaken belief that the document they have can be relied upon. So please, when you’re ready to get your estate planning done, don’t aim to get it close. Make sure it’s done right!

At Mills & Mills LLP, our lawyers regularly help clients with a wide range of legal matters including business law, family law, real estate law, estate law, employment law, health law, and tax law. For over 130 years, we have earned a reputation amongst our peers and clients for quality of service and breadth of knowledge. Contact us online or at (416) 863-0125.