Thursday, November 24, 2016

Getting It Right: Formal Requirements for Your Last Will and Testament

BY PAUL B. ADAM, ASSOCIATE LAWYER

Remember the old expression, "close enough" only works with horseshoes and hand grenades?

Keep this in mind when drafting your Last Will and Testament.  The law is very clear about the formal requirements that must be met for a Will to be validated.  So, along with ensuring that your Will clearly articulates how you want your Estate's assets to be divided, make sure it also meets the law's formal requirements, so that you can feel safe that your Will is actually valid.

Ontario's Formal Will Requirements

Just what goes in to making a Last Will legally valid?

Let's focus on three basic formal requirements about the document itself:
  1. The Last Will and Testament must be signed by the person making the last will
  2. It must be witnessed by two people
  3. The two witnesses can't also be beneficiaries under the last will
These requirements may sound simple enough, but a failure to strictly meet any of them can create serious challenges.

Why is it so important that your Last Will and Testament meets each and every legal requirement for validity? 

Ontario courts have very little power to validate or rectify a Will that does not meet all of the law's formal requirements for validation. This is true, even when the Will genuinely represents the wishes of the person who signed it,

Several provinces in Canada do grant Will rectification powers to their Courts. Nova Scotia's Wills Act, as an an example, provides that a Court may order that a Will is valid and fully effective, even where the formal requirements imposed haven't been met.  This rectification is possible only if the Court is otherwise satisfied that the Will fully embodies the actual intentions of the testator.

Ontario courts do not have this additional discretion.

What happens when an Ontario Will does not comply with these formal requirements?

If presented with a Last Will that is unsigned, an Ontario Court will likely refuse to admit it as a last Will. (There may be an exception if someone signed a Last Will, the beneficiaries lost it, and then tried to present an unsigned version of the validly executed Last Will, along with proof that there was once a signed copy, see Sorkos v Cowderoy, Ontario Court of Appeal, 2006).

Having a Last Will that's been witnessed by only one person might seem like a less serious defect than a Will that hasn't been witnessed by anyone. But nevertheless, the Ontario Court in Sills v Daley (Ontario Superior Court, 2002) declined to validate a Last Will that had only one witness, and thus "almost" met the formal requirements.

Again, "close but no cigar."

If one, or both of the witnesses to a Last Will is a beneficiary, this may not be a fatal flaw. The Court may still accept the Will as valid, but your executors (and possibly your beneficiaries) will likely have some work to do. A beneficiary who also witnessed the Last Will will need to provide clear evidence that he or she didn't pressure or exert undue influence on the Testator to sign the document. It is by no means a given that the Court will accept the beneficiary's testimony

Get it Right, Or Else...

If a Court refuses to validate a Last Will, the result can be that your Estate gets divided and distributed as if you had no Will at all.  A different set of legal intestacy rules will then be followed that will distribute your assets in a way that might not reflect your actual wishes.

That can mean upset beneficiaries, litigation, more legal fees or taxes for your Estate to pay, and the hard work you've done on your estate planning going down the drain.

So when it comes to these basic formal requirements, ensure your Will gets it right.

- Paul B. Adam, Toronto

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