All About Estates

Don’t let your favourite TV show fool you…

Today’s blog was written by Courtney Lanthier, law clerk at Fasken LLP

I was watching a show recently where, when a character passed away, he left his family a video message that included how he wanted to divide his estate. As someone who recently started drafting wills and working through estate administration files, I immediately thought – would this be considered a valid will?

While a videotaped message setting out a person’s intentions for their estate may be acceptable in some places, in Ontario, it is not. The Succession Law Reform Act (“SLRA”) sets out that “a will is valid only when it is in writing” [1]. Not only does the will need to be in writing, but it is also important to remember that it must be witnessed properly in accordance with the requirements set out in the SLRA. As it currently stands, there are a few different ways a will can be witnessed in order to be considered valid:

In person witnessing

  • Must be signed by the testator in the presence of two witnesses.[2]
  • The two witnesses cannot be a beneficiary or the spouse of a beneficiary under the will.

Virtual witnessing

  • Must be signed by the testator in the presence of two witnesses, all present through audio-visual communication technology.
  • One of the two witnesses must be a licensee within the meaning of the Law Society Act.
  • The testator and the two witnesses must sign complete, identical copies of the will, contemporaneously, in counterparts. All three copies of the will together will constitute the original will.[3]

A holograph will is the only instance in which witnesses are not required. In order for this type of will to be considered valid, it must be signed by the testator and written completely in their handwriting.[4]

While all of this may seem second nature to us, with the influence the media has on so many people these days, it’s important to make sure our clients know the legal requirements in executing a will in order to avoid any potential issues arising later on. By ensuring the will is witnessed and executed correctly, we can save time on potential delays when applying for probate, as well as save on additional costs to our clients in having to re-execute documents.

As always, the law is subject to change. So who knows – maybe in twenty years, video wills will be the new norm. But until then, lets make sure we follow these requirements in order to make the future estate administration process a little easier.

[1] Succession Law Reform Act, R.S.O. 1990, c.S.26, s. 3

[2] Ibid, s. 4 (2)

[3] Ibid, ss. 4 (3) and (4)

[4] Ibid, s. 6

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About Fasken
Fasken is a full-service law firm with offices in Canada, the U.K., South Africa and China. We work with clients around the globe, advising on legal issues affecting all types of industry, government and individual objectives.

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