Formal Requirements of Wills and Accommodations for Testators

April 30, 2019 Sayuri Kagami Estate Planning, Wills Tags: , , 0 Comments

Many people are generally aware that the preparation of a Will is a significant event which requires that certain formalities be complied with. In Ontario, the formal requirements for executing a valid Will are set out at sections 3 to 7 of the Succession Law Reform Act (the “SLRA”).

Formal Requirements of a (Non-Holograph) Will

The formal requirements set out in the SLRA for wills, aside from holograph wills and those of active service members, are:

  1. The will must be in writing;
  2. The will is signed at the end by either the testator OR by some other person in the presence of the testator and by the testator’s direction;
  3. The will is signed OR acknowledged by the testator in the presence of at least two attesting witnesses who are present at the same time; and
  4. At least two attesting witnesses sign/subscribe the will in the presence of the testator.

For most English speaking Ontarians, the formal requirements for executing a valid will pose little issue. They can read and review the document, sign it at the end in the presence of two people, and then have those two persons sign immediately after them. However, for some individuals, the formal requirements of a Will may pose difficulties. Today’s blog examines what types of issues may arise and how to address them.

Illiterate Individuals

For individuals who are unable to read or write, some may not be able to sign their name in the conventional sense. However, common law courts have accepted a wide variety of “marks” which are intended to give effect to a will, from hand-printed signatures and parts of a signature to initials and even thumb-prints in ink. With the wide variety of “marks” that will satisfy the formal requirement of signing the will, most testators will be able to execute a will without difficulty.

Those who Have Physical Difficulty Writing

For individuals who may experience physical difficulties in executing a Will, several solutions exist. As the Courts accept a variety of “marks,” it may be possible for those who find it difficult to fully sign their name to nonetheless adequately sign the will for the purpose of complying with the SLRA.

Alternatively, individuals may direct another person to sign the will for them, provided that the testator remains in their presence at that time. In certain jurisdictions, the person signing on behalf of the testator may also act as the attesting witness.

Formal Validity and Substantive Requirement of Knowledge and Approval of Will

While the provisions of the SLRA allow for some flexibility in how a testator “signs” a will, it is important to follow precautions in order to ensure that the substantial requirement of knowledge and approval are not later questioned. In situations where an individual is unable to read English or to sign documents, individuals may raise concerns about whether the testator knew of and approved the contents of the will purportedly being signed by them.

In such circumstances, where a will challenge is commenced, it is important to have evidence that the will was read over for a non-English speaking testator in their preferred language, that it was read over for an illiterate person, or that the will was truly being signed by another person at the direction of the testator, and not as a result of undue pressure.

Thanks for reading!

Sayuri Kagami

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