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Are Oral and/or Videotaped Wills Valid?

A recent news article refers to the struggle of father of accused killer Bryer Schmegelsky to obtain video footage from the Royal Canadian Mounted Police.

The father’s lawyer has referred to the video as the accused’s “last will and testament.”  It was apparently recorded very shortly before death and expresses funeral and burial preferences.

Oral wills (also known as nuncupative wills) are recognized in select jurisdictions, including some American states:

As most state legislation is silent on the issue of videotaped wills, if the testator’s oral wishes are videotaped, they must generally meet the criteria for a valid oral will to be effective.

However, in Canada, a will must be in writing, signed by the testator, and witnessed by two people.  Alternatively, a will that is entirely in the testator’s handwriting and unwitnessed may be valid.  Because Ontario is a strict compliance jurisdiction, any inconsistency with the formal requirements, as set out in the Succession Law Reform Act, renders a will invalid.

While a videotaped statement intended to be viewed posthumously may not be a valid will in Ontario and other Canadian provinces, it can nevertheless be used to express the deceased’s final wishes, for example with respect to the disposition of his or her remains (which are typically precatory rather than enforceable, even if appearing within a written document), and may assist a family in finding closure following an unexpected loss.

Thank you for reading.

Nick Esterbauer