Valid Wills in Ontario: What You Need to Know Before You Write One

Making a will is one of the most important steps in protecting your loved ones and making sure your wishes are respected after you pass away. But not all wills are created equal; in Ontario, certain types of wills carry more legal weight than others. If you fail to follow the right rules, your will could be challenged or even declared invalid.

This post breaks down the main types of wills in Ontario, what makes them valid, and the risks of cutting corners. By the end, you’ll have a clear sense of which option might be right for you and why legal guidance can save you a lot of trouble later.

The Law Behind Wills in Ontario

In Ontario, wills are governed by the Succession Law Reform Act (SLRA). This legislation sets out the rules for what makes a will valid, who can make one, and what exceptions exist.

The two main types of wills recognized are:

• Formal (attested) wills: the standard, witnessed version.
• Holographic wills: handwritten wills made without witnesses.

Since 2022, Ontario has also introduced some flexibility, allowing courts to validate imperfect wills if they still show a clear intention. By consulting a wills and estate lawyer, you can make sure to meet the legal requirements valid wills in Ontario.

Why a Formal Will Is Still the Safest Choice

When people picture a will, they’re usually thinking of the formal, signed, and witnessed version. This type of will is the most secure option, as it is the least likely to be disputed.

Key requirements for a valid formal will:

• It must be in writing (typed or handwritten).
• The testator (you) must sign it at the end of the document.
• Two witnesses must sign in your presence and in each other’s presence.
• Witnesses cannot also be beneficiaries; otherwise, their inheritance could be voided unless a court allows it.
• Since 2020, witnessing can also be done remotely by video, provided at least one witness is a lawyer or paralegal.

Common mistakes that cause problems:

• Forgetting to have both witnesses present at the same time.
• Having a beneficiary (or their spouse) act as a witness.
• Placing your signature in a confusing location.
• Not dating the will; dates aren’t strictly required, but they help avoid disputes.

Bottom line: A formal will is the most reliable way to make sure your wishes stand up in court.

Holographic Wills: Quick but Risky

Ontario law also allows for “holographic wills” written entirely in your own handwriting. These don’t require witnesses, which makes them attractive in emergencies or situations where witnesses aren’t available.

To be valid, a holographic will must:

• Be written completely in your handwriting.
• Be signed by you at the end.
• Show a fixed and final intention to distribute your estate (not just notes or rough drafts).

Risks of relying on a handwritten will:

• Handwriting may be illegible or contested.
• If any part is typed or printed, it may not count as a holographic will.
• Attaching typed documents or codicils is not allowed.
• They are more vulnerable to challenges in probate court.

Bottom line: While legally recognized, holographic wills often create more problems than they solve. They should only be a temporary solution.

When the Court Can Step In: Substantial Compliance

Since January 2022, Ontario courts have been given the power to validate wills that don’t fully meet the SLRA’s technical requirements, provided two conditions are met:

1. The document is authentic.
2. It clearly shows a final intention to act as a will.

This “substantial compliance” rule can save families from losing a loved one’s wishes over minor mistakes. However, relying on the courts adds cost, delay, and uncertainty, so a properly drafted will is still the better path.

Mental Capacity, Undue Influence & Suspicious Circumstances

Even if a will appears valid on paper, it can still be challenged in court. Ontario law requires the right formalities, fairness, and free will.

A will may be contested if:

• The testator lacked capacity: they didn’t understand the nature of their assets or who their beneficiaries were (based on the Banks v. Goodfellow test).
• They were pressured or influenced: undue influence, coercion, or manipulation makes the will invalid.
• Suspicious circumstances exist: for example, if someone with much to gain was deeply involved in drafting the will.

Bottom line: Validity is about more than signatures; it’s about ensuring the will truly reflects the testator’s own wishes.

DIY and Handwritten Wills: Pros and Cons

Some people choose to make their wills without a lawyer. While this may seem like a cost-saving measure, the risks are significant.

Advantages of DIY or handwritten wills:

• Quick and low cost.
• No legal professional required.
• Useful in urgent or remote situations.

Drawbacks to consider:

• Greater chance of disputes and court challenges.
• Higher risk of errors that void parts (or all) of the will.
• Possibly the will is lost or never found.
• Courts may require handwriting experts to verify authenticity.

Wills in Ontario: Side-by-Side Comparison

Here’s how the main types of wills compare:

Final Thoughts: Why Legal Guidance Matters

Ontario law allows different paths for creating a valid will, but not all of them provide the same level of certainty. While holographic wills and DIY approaches are legally possible, they often create headaches for families.

The best way to ensure your wishes are carried out smoothly is to prepare a formal will with legal assistance. This minimizes the risk of disputes, protects your loved ones, and ensures your estate is distributed according to your true intentions.

If you’re considering drafting or updating your will, speaking with a lawyer is the most effective way to safeguard your legacy.

Sources:

www.ontario.ca