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WILLS: ENSURING FINANCIAL WELL-BEING OF FAMILIES - BY ANNE-MARIE MAGNERON

 

January 10, 2019

A Will may be necessary to ensure the financial well-being of an individual’s family so it is essential that it is valid which means that it must be executed properly. Preparing a Will and ensuring proper execution is critically important since estate litigation can be quite expensive and can eat into the inheritance one is hoping to leave to their beneficiaries. When executing a Will in Ontario, an individual should be aware of a number of important principles especially if they are preparing the Will without the assistance of a lawyer.

In Ontario, the process of preparing a valid Will (or Power of Attorney) is governed by the Succession Law Reform Act (“SLRA”). For instance, the SLRA states that a Will is only valid when it is done in writing. Other interesting and little known facts include: (1) a gift to a witness or the witness’ spouse is void; and (2) both witnesses have to be together when the testator signs the Will. This means that you have to be very thoughtful in the selection of the two witnesses you need for your Will or there may be unintended consequences:

(1)   In order to ensure that your beneficiaries receive their inheritance in your Will, make sure that they do not witness your Will. The beneficiary’s spouse cannot witness your Will either because anyone who may want to contest your Will can say that the witness induced you to leave the gift to the witness or the witness’ spouse.

(2)   The legislation is clear when it comes to the logistics of the signing of the Will: there must be two witnesses and they must be together at the time of the signing/witnessing of the Will. If a testator were to sign a Will in front of one witness and then take the Will to the second witness afterwards, the Will would be invalid for failure to be properly executed. This could mean that you are treated as though you died without a Will.  

On the contrary, one thing you do not have to worry about is if a person who witnessed your Will was capable at the time of its execution but afterward has become incompetent as a witness to prove its execution, the Will is not invalid for reasons of incapacity of a witness. In other words, if a witness to a Will were to, afterwards, become “incompetent”, that Will would not be invalidated based on the incapacity of the witness.

Other important principles of execution are considered “best practices” as they are not legislated but should still be followed. At Perley-Robertson, Hill & McDougall LLP, we recommend that, for a Will to be properly witnessed, the witness of the Will signing must be at least 18 years of age, have capacity, and not be related to the testator. These practicalities stem from contract law because a minor cannot be bound by a contract. Also, a witness who has reached the age of majority is a more credible witness if issues arise and the validity of the Will is questioned by a disgruntled family member! The only exception to these rules is a Holographic Will, which is a Will that is done entirely in the testator’s handwriting, as it does not require witnesses at all.