All About Estates

Is it a Will?

The answer to this question depends on (i) the legal requirements regarding the formalities for making a Will and, (ii) when those requirements are not met, whether the court with jurisdiction over the Will is able to follow the doctrine of “substantial compliance”.

In Ontario, in order for a Will to be valid it must either be a holographic Will or a formal Will.

A holographic Will is one that is written entirely in the deceased’s own handwriting and signed at its end. One can well imagine the jurisprudence being replete with cases addressing what those requirements mean. Consider, for example, the typical stationer’s package where some of the text is pre-printed, with the balance to be inserted by the testator/testatrix in their own handwriting.

A formal Will is one that is typically formatted on a computer and then executed by the testator/testatrix, in the presence of two witnesses, who are both present at the same time and they then sign the Will in the presence of the testator. Again one can well-imagine situations where these rules may, quite innocently, be breached. Consider, for example, the situation where the lawyer and their assistant are both present at the start of the Will signing but one of them experiences “nature’s call” so has to exit the signing mid-way through the process. In this rather innocuous situation, where the document otherwise reflects the testator/testatrix’s intentions, whether the Will can be submitted to the court for probate will depend upon whether the legal regime requires strict compliance with the formalities for due execution or has adopted the principle of substantial compliance.

The concept of substantial compliance permits a court to accept a Will that might be deficient, in terms of satisfying the requirements for due execution, as otherwise being compliant. At present, Ontario and Newfoundland and Labrador currently do not have statutory provisions that allow for “substantial compliance” for a Will to be probated. This is unlike the rest of Canada where the beneficiaries under a Will that is found to embody the testamentary intentions of the testator/testatrix, albeit without complying with the formalities of due execution, will find themselves with a means for the court to order the Will valid and fully effective.

While strict compliance may provide a remedy in a situation where a Will is innocently offside, it may also impose added burdens on the executor of a Will to make searches of what may otherwise be accepted as a Will reflecting the testamentary intentions of the testator/testatrix.

There are pros and cons to both requiring strict compliance and allowing for substantial compliance. Ultimately, as a Will planner, the bottom line should be to ensure a solid understanding of the rules related to due execution and a protocol that you follow in each and every signing ceremony. At the end of the day, one wants to ensure the testator/testatrix walks away with a Will that is formally valid.


Corina Weigl

About Corina Weigl
Corina Weigl is a partner in the Trusts, Wills, Estates and Charities group at Fasken, a leading international law firm with over 650 lawyers and 9 offices worldwide that offers comprehensive estate planning, estate administration, personal tax planning, charitable giving and estate litigation services. Email: