- A formal will must be in writing, signed by the testator, and witnessed by two people present at the same time.
- A witness who is a beneficiary, or whose spouse is, generally forfeits the gift.
- Testamentary capacity is a legal test, not a medical one, and it is assessed at the time of signing.
- Marriage no longer revokes a will in Ontario, which is a significant change from the older rule.
The formal requirements
For a formal will, the requirements are specific: it must be in writing; signed at its end by the testator, or by someone else in the testator’s presence and at their direction; and the signature must be made or acknowledged in the presence of two witnesses, present at the same time, who then sign in the testator’s presence.
Ontario also recognises a holograph will, one written entirely in the testator’s own handwriting and signed by them, which does not require witnesses. It is valid, but it is far more likely to be ambiguous, incomplete or contested.
The witness trap
A witness must be an adult with capacity, and must actually witness the signature.
The trap is that a beneficiary should never witness. A gift to a person who witnessed the will, or to their spouse, is generally void, while the will itself remains valid.
The result is a will that works exactly as intended except that it disinherits the person the testator most wanted to benefit. It happens with some regularity when wills are signed informally.
A court now has some discretion to validate such a gift, but relying on discretion is a poor substitute for choosing a neutral witness.
Capacity
Testamentary capacity is a legal test. The testator must understand the nature of the act of making a will and its effects; understand the extent of the property being disposed of; be able to comprehend and appreciate the claims of those who might expect to benefit; and have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties.
Capacity is assessed at the time the will is made. A diagnosis of dementia does not automatically mean incapacity, and a person may have capacity at some times and not others.
Where capacity might later be questioned, contemporaneous evidence is what protects the will: a detailed solicitor’s file note, and in appropriate cases a capacity assessment at the time of signing.
Undue influence and knowledge
A will can be set aside for undue influence, where the testator’s own volition was overborne by another. Ordinary persuasion or family pressure is not enough; it must amount to coercion.
The testator must also know and approve the contents. This is presumed where the will was properly executed, but the presumption can be displaced by suspicious circumstances, for example where a major beneficiary arranged the will and instructed the lawyer.
The practical protection is straightforward: the testator gives instructions alone, and the beneficiary is not present at the meeting or the signing.
Marriage, separation and divorce
Ontario changed a long-standing rule here, and it matters.
Marriage no longer revokes an existing will. Under the old rule, marrying automatically voided a will unless made in contemplation of that marriage, which caught many people out.
Separation now has an effect: where spouses are separated within the meaning of the legislation at the date of death, gifts to the separated spouse and their appointment as estate trustee are generally revoked, as though they had predeceased.
Divorce has a similar effect on gifts and appointments to the former spouse.
Because these rules changed, wills made under the older regime should be reviewed rather than assumed to operate as originally expected.
Making it harder to challenge
Practical steps that reduce risk: use a lawyer and let them keep a detailed file note of instructions and capacity; choose neutral witnesses; keep the beneficiary out of the room; where the will departs from expectations, record the reasons; review the will after significant life events; and check beneficiary designations at the same time, since they operate independently of the will.
Common questions
Do I need a lawyer to make a will?
No, but the errors that invalidate wills or produce unintended results are concentrated in home-made ones, and they are discovered when the testator cannot fix them.
Can I disinherit a child?
An independent adult child can generally be excluded. A dependant, including in some circumstances an adult dependant, may bring a support claim against the estate.
Where should the will be kept?
Somewhere secure and findable. A will nobody can locate is functionally a will that does not exist, and only the original is normally admitted to probate.
How often should a will be reviewed?
After any significant change, marriage, separation, a birth, a death, a major asset change, and otherwise periodically, particularly given the recent changes to Ontario succession law.
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