What Are The Requirements For A Will To Be Legally Valid in Canada? (2022)

How do I know if my will is legally binding? Will it hold up in court? Do I need a lawyer or notary to make my will legal? What happens if my will is contested?

These are common questions we hear from Canadians, and ones that are important to ask as you create your estate plan. In this article, we explain what makes a valid will and why a will can be contested so you can feel confident in your estate plans.

What Are The Requirements For A Will To Be Legally Valid in Canada? (1)

Do I Need A Lawyer Or Notary To Make A Will?

  • As long as your will complies with your provincial laws regarding valid wills, an online will carries the same legal weight as one created by a lawyer
  • As long as your will is written and signed by you when you are of sound mind you do not need a lawyer to create it
  • In the case of a typed will, it must be witnessed correctly to be legally valid (details below)
  • Any will can be contested, regardless of how you make your will — even a will created by the most expensive estate lawyer in Canada can be contested

If your will is contested, it’s up to the courts to decide whether your wishes will be upheld.

📝 Create your legal will with Willful. Start today for free →

(Video) What Makes A Will Legal In Canada | Willful

What Makes A Will Legal In Canada?

A will is a legal document that outlines how you want your estate to be distributed once you’ve passed away. Your estate includes all your assets— anything you possess of financial or other value. Exceptions include jointly owned assets, pensions or life insurance policies that have a specific death beneficiary.

From your estate, you can choose to leave specific gifts to individuals, as well as legacy donations to charities and organizations that are close to your heart. Anything left over is called your ‘residual estate,’ or simply ‘the residue.’ The most current version of your will, if executed wholly and correctly, should override previous versions of your will or verbal agreements you may have made during your lifetime.

While there are nuances in provincial laws and language, this is the criteria to create a legal will in Canada:

  • Outside of British Columbia. it must be in writing as a physical copy (you cannot store a will online)
  • You must be over the age of majority in your province and of sound mind
  • Exceptions: BC residents must be at least 16 years of age. If you’re under the required age, there are specific circumstances that allow you to make a legal will, like if you’re married, have children or are a member of the armed forces.
  • If the will is typed, you must sign your will with two witnesses present and they must sign to confirm they have witnessed your signature. In British Columbia, this can be completed completely online. The testator’s signature should be placed at the end of the document. While not required, it is best practice to initial each page of the will in addition to signing on the last page. In some circumstances, it is possible for someone else to sign on behalf of the testator, but it should state that it was signed by someone else on the testator’s behalf in his presence at his or her direction. The two witnesses don’t necessarily have to sign in the presence of the other witness, but the testator must sign in the presence of two or more of the attesting witnesses. The sequence matters: the signature or the acknowledgement of the signature by the testator must precede the signature of either witness.
  • Valid Witnesses: Your witnesses cannot be a named executor or their spouse and cannot be a named beneficiary or their spouse. * If a witness is a beneficiary, the gift made to that person might not be considered valid. The best practice is to find witnesses who do not benefit from your will.
  • The signatures must be at the very end of the will

Each Willful document created comes with a detailed instruction page to make sure all the legal requirements are followed.

💻 Everyone's life is different — their wills should be, too. Discover which Willful plan is right for you. Take the quiz →

Do I Need A Lawyer Or Notary?

When it comes to estate planning, some people turn to lawyers in search of legal advice. Identical, self-made or computer-generated documents that follow the provincial requirements are just as legal as those prepared by a lawyer.

However, there are some different scenarios where you may benefit from advice on a complicated matter (i.e. what to consider when dealing with foreign property, if you have a blended family, you are under legal obligation to pay support, etc.) and might need customized language beyond what is typically standard in estate planning. ]

Some people liken it to doing your taxes. If you have a straightforward return to file, you can choose to use:

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  • Tax forms provided by your provincial government to mail in yourself
  • Free or paid tax software you can do your own taxes and digitally file yourself
  • Visit an accountant or tax specialist to have them file on your behalf

While each method is valid, each option depends on the needs, concerns, and comfort level of the individual. The majority of people will not need to seek a tax specialist, which is similar to those who need a will and other estate planning documents like power of attorney for property and personal care.

If you require legal advice, you can visit an estate lawyer. However, this will require you to pay legal fees.

The legality of a will is based on the final document and correct witnessing and signing, not on who prepared it. To read more on what is required according to each province, we’ve provided links to each province’s attorney general pages below.

✍️ Does my will need to be notarized? Read More →

What Is Probate, And When Is It Required?

Probate is the process of a Will being accepted as valid by the court system. It is initiated by the will’s named executor/trustee, or their legal representative, “applying for probate” to the applicable provincial or territorial court system. Some estates do not need to be probated and can be handled informally, however the probate process is required if:

  • The estate contains any real estate held solely in the name of the testator
  • The estate contains shares in a publicly traded company
  • The estate contains financial accounts held solely by the testator (not joint with another party)
  • The will is controversial and is likely to be challenged

Just because a will goes through probate does not necessarily mean it has been contested.

Will My Will Hold Up In Court?

Contesting a will involves a legal proceeding in which arguments are made in court to have the will made invalid. Contesting a will must be initiated by a person who believes it is invalid or unlawful. What’s important to note is that any will can be contested by family members or other individuals, regardless of how it was prepared.

A will prepared by the testator (the author of the will) that is either handwritten (holographic will), created using a store-bought Canadian will kit, an online platform, or yes even one prepared by a lawyer can all be contested if someone chooses to do so. What most people worry about when preparing their will is whether their final wishes will be overturned by the courts.

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Contesting a will involves a lot of time, money and evidence to support the claim being made. Every case is different, but the most common reasons for contesting a will include:

Undue influence

This is when someone believes a person (or persons) has pressured the testator (author of the will) to change their will. This occurs most often with vulnerable people like the elderly or those with a cognitive impairment.

Lack of mental capacity

This is when someone believes that the testator is unable to make their own decisions due to an illness, disability, or mental health problem.

Problems with the will itself

This is when someone challenges the validity of the will because of contradictions in language, improper witnessing or lack of signature.

A family member is cut-off

A cut-off family member may contest a will and could claim undue influence or lack of mental capacity. This is different than a spouse or child who may be entitled to support under provincial law and can make a dependant support claim.

Interpretation of the will

This is when a clause is vague and gives rise to one or more conflicting meaning.

Fraud or forgery

Also falling under undue influence. This is when someone uses lies, threats, etc to get the testator to change the way they distribute their assets or forges their signature to benefit from the estate.

When someone decides to contest will, it doesn’t mean it will be overturned. It can take the court a long time to look at all of the facts and make a decision.

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While the majority of wills are upheld, if the court decides a will is invalid it can either put an earlier will in place if one exists or distribute assets according to government intestacy laws.

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Legal Wills In Different Provinces

For more information on legal wills in specific provinces here. The information broken down above is based on the legislation for each province and territory:

Ontario -Succession Law Reform Act

Create A Legally Valid Will Today

Hopefully, this article answered some of your questions regarding the legal requirements for a valid will in Canada.

Creating your legally-valid will is easier than you might think! With platforms like Willful, you can easily create your will online in less than 20 minutes. We'll walk you through the process and provide you with everything you need to know to ensure your document is legally binding. Start your will for free today.

Have more questions? Book a call with one of our experts →

FAQs

Does a will in Canada need to be notarized? ›

The short answer is, no! You do not need to have your last will and testament notarized for it to be legal. It is a common misconception that you need a lawyer or a notary to make a legally-valid will in Canada.

What makes a will invalid in Canada? ›

lack of knowledge and approval; Failure to provide adequate provision for a spouse or child; undue influence; and. fraudulent wills and forged wills.

What criteria are needed to make a will to be valid? ›

Requirements for a Will to Be Valid
  • It must be in writing. Generally, of course, wills are composed on a computer and printed out. ...
  • The person who made it must have signed and dated it. A will must be signed and dated by the person who made it. ...
  • Two adult witnesses must have signed it. Witnesses are crucial.

Is it legal to do your own will in Canada? ›

Yes! You can write a will yourself in Canada. There is no requirement to visit a lawyer or use a specific method of creating your will. From online wills to will kits, or even hand writing your will - there are many ways to make a will yourself in Canada that are 100% legal.

What invalidates a will? ›

Fraud or forgery

This is when someone uses lies, threats, etc to get the testator to change the way they distribute their assets or forges their signature to benefit from the estate.

How do I write a will without a lawyer in Canada? ›

Steps To Making a Will Without a Lawyer
  1. Find an online template or software. ...
  2. Make a list of your assets. ...
  3. Be specific on who gets what. ...
  4. If you have children, choose a guardian. ...
  5. Don't forget about your pets! ...
  6. Choose an executor. ...
  7. Name a residual beneficiary. ...
  8. Plan your funeral.
29 Aug 2022

On what grounds can a will be challenged? ›

As per the law, anyone above 18 years can make a will. It can be challenged on the basis of senility, dementia, insanity, or if the testator was under the influence of a substance, or in some other way lacked the mental capacity to form a will.

On what grounds can someone contest a will? ›

The main grounds to contest a will are: Lack of testamentary capacity (the mental capacity needed to make a valid will) Lack of due execution (a failure to meet the necessary formalities i.e. for the will to be in writing, signed and witnessed correctly)

Can a family member be a witness to a will? ›

Technically, any two people can be witnesses when creating a will who should be non-beneficiaries or their close relatives, and preferably younger than the will maker in age.

Do you need a lawyer to read a will? ›

There is no need for a will to be drawn up or witnessed by a solicitor. If you wish to make a will yourself, you can do so. However, you should only consider doing this if the will is going to be straightforward.

What makes a valid will? ›

For a will to be valid: it must be in writing, signed by you, and witnessed by two people. you must have the mental capacity to make the will and understand the effect it will have. you must have made the will voluntarily and without pressure from anyone else.

How long after someone dies is the will read in Canada? ›

While the rule isn't set in stone, the executor's year applies to your “average” estate. For a simple estate, the executor is granted one year from the date of death or one year from probate (more on that later) to distribute assets such as property, gifts, and cash to beneficiaries.

Does a will have to be registered? ›

No, it is not necessary to register a will. It is still legally valid after your death, provided the conditions for a legally valid will have been met.

Are wills registered in Canada? ›

Every Will in Canada is registered after it is probated. Most Wills in Canada are probated, but this happens after you have died. If you are looking for the Will of somebody who has died, then you can usually find the Will with an application to the local probate courts.

Is a homemade will legal? ›

Your options for writing your own will

As long as it was properly signed and witnessed by two adult independent witnesses who are present at the time you sign your will, it should be legally binding.

Who is entitled to see a copy of a will in Canada? ›

Who is Entitled to See a Will? Before a testator passes away, he or she is generally not required to share the contents of his or her Will with anyone. However, once the testator dies, any person listed in the Will as an executor or beneficiary is entitled to see it.

How do you ensure a will Cannot be contested? ›

Use a no-contest clause.

One of the most effective ways of preventing a challenge to your will is to include a no-contest clause (also called an "in terrorem clause") in the will. This will only work if you are willing to leave something of value to the potentially disgruntled family member.

Why might a will be invalid? ›

A will can be declared invalid where there is found to have been 'undue influence' on the testator. To avoid any challenge along these lines, it is important that a will is made voluntarily and not under duress, and reflects the testator's true wishes.

Can a sibling challenge a will? ›

Who can contest a will? Theoretically, anyone can challenge a will, whether that's a sibling, or someone who doesn't appear to benefit on first glance, but may be a residuary beneficiary. However, contesting a will is not something you should consider without good reason.

How long after death can you contest a will? ›

Beneficiaries making a claim against an estate ? The limitation for a beneficiary making a claim against an estate is 12 years from the date of death.

Can a will be changed after death? ›

While you can't rewrite someone's Will after they've died, the law does let you change what you're entitled to from the estate. This is to allow flexibility in case circumstances have changed since the Will was written.

Who pays to defend a contested will? ›

The likely costs to contest a will

Inheritance claims are a form of hostile litigation and the two general rules apply, namely: costs are in the discretion of the court; and. the losing party may be ordered to pay the winning parties costs.

Can an executor be a beneficiary? ›

It is a common misconception that an executor can not be a beneficiary of a will. An executor can be a beneficiary but it is important to ensure that he/she does not witness your will otherwise he/she will not be entitled to receive his/her legacy under the terms of the will.

How do you prove undue influence in a will? ›

The burden of proving undue influence is on the person challenging the will. They must show, on the balance of probabilities, that the mind of the testator was overborne by the influence exerted by another person, such that there was no voluntary approval of the will.

What happens if will witness dies? ›

If the witnesses are untraceable or dead then also the Will can be probated and their signature can be formally proved by those who are well known about their identity and signature.

Are online wills legal in Canada? ›

Online wills are legal everywhere in Canada. But not every company is currently operating in every province. For example, Willful is available in Ontario, Alberta, Saskatchewan, Nova Scotia, Manitoba, and British Columbia. If you live outside these provinces, a Willful will isn't an option for you.

Should beneficiaries get a copy of the will? ›

It is common for beneficiaries to ask to see a copy of the Will. It is however your discretion as Executor whether or not to disclose it to the beneficiary.

How do you know if you are named in a will? ›

How do I know if I am the beneficiary of a will? Helen: If someone has left a will and you are a beneficiary of an estate, you would usually be contacted by the executor, or the solicitor the executor has instructed, to notify you that you are a beneficiary.

Can you use a deceased person's bank account to pay for their funeral? ›

Many banks have arrangements in place to help pay for funeral expenses from the deceased person's account (you should contact the bank to find out more). You may also need to get access for living expenses, at least until a social welfare payment is awarded.

Do all wills go to probate? ›

Probate. If you are named in someone's will as an executor, you may have to apply for probate. This is a legal document which gives you the authority to share out the estate of the person who has died according to the instructions in the will. You do not always need probate to be able to deal with the estate.

When can a will be void? ›

A will may have been attested by two witnesses and duly signed by the testator but if it's not dated, it becomes void. The law also says that a new will with a later date would make the previous one null and void. If a will is termed invalid, the court distributes the property as if no will ever existed.

What formalities must be complied with to create a valid will? ›

Requirements of a Valid Will
  • The Will must have been entered into by someone over the age of 18.
  • The Will must have been entered into a person who is (1) of sound mind (2) drafts the Will voluntarily and without duress. ...
  • The Will must be in writing.
  • The Will must be signed in the presence of two witnesses.

How many formalities must be complied with for a valid will to come into existence? ›

There are three main formalities required in making a valid will and it is important that these are followed, otherwise your will be considered invalid.

How do you avoid probate in Canada? ›

How to avoid probate in Ontario
  1. Tip 1: Name the key beneficiaries on all your life insurance policies. ...
  2. Tip 2: Hold assets in cash only or bearer certificates. ...
  3. Tip 3: Designated beneficiary Assets Accounts. ...
  4. Tip 4: Joint Ownership. ...
  5. Tip 5: Gifts. ...
  6. Tip 6: Create a Trust Fund. ...
  7. Tip 7: Transfer assets to Limited Company.

Can you leave a child out of your will in Canada? ›

While BC has some of the most sympathetic laws in all of Canada for people who have been unfairly disinherited, parents can disinherit their children from their will if they have valid and rational reasons.

What happens to a house when the owner dies with a will? ›

Usually when a property owner dies, all the major heirs – the family members who stand to inherit – must agree that the property can be sold unless the estate is insolvent and the property has to be sold to pay debts.

Who can notarize a will in Canada? ›

While certain licensed professionals, such as doctors, professional engineers, and police officers, can notarize some documents, only a registered legal professional like a lawyer or notary can notarize others.

Can a family member be a witness to a will? ›

Technically, any two people can be witnesses when creating a will who should be non-beneficiaries or their close relatives, and preferably younger than the will maker in age.

How much does it cost to notarize a will in Ontario? ›

FEES
1st to 3rd:$12.95 each
4th to 6th:$10.00 each
7th to 9th:$8.00 each
10th and up:$5.00 each

Are wills registered in Canada? ›

Every Will in Canada is registered after it is probated. Most Wills in Canada are probated, but this happens after you have died. If you are looking for the Will of somebody who has died, then you can usually find the Will with an application to the local probate courts.

How long after someone dies is the will read in Canada? ›

While the rule isn't set in stone, the executor's year applies to your “average” estate. For a simple estate, the executor is granted one year from the date of death or one year from probate (more on that later) to distribute assets such as property, gifts, and cash to beneficiaries.

Who is entitled to see a copy of a will in Canada? ›

Who is Entitled to See a Will? Before a testator passes away, he or she is generally not required to share the contents of his or her Will with anyone. However, once the testator dies, any person listed in the Will as an executor or beneficiary is entitled to see it.

Can a family member witness a signature Canada? ›

There is no general rule that says a family member or spouse cannot witness a person's signature on a legal document, as long as you are not a party to the agreement or will benefit from it in some way.

Can an executor of a will also be a beneficiary? ›

It is a common misconception that an executor can not be a beneficiary of a will. An executor can be a beneficiary but it is important to ensure that he/she does not witness your will otherwise he/she will not be entitled to receive his/her legacy under the terms of the will.

Does a will need to be registered? ›

No, it is not necessary to register a will. It is still legally valid after your death, provided the conditions for a legally valid will have been met.

What happens if will witness dies? ›

If the witnesses are untraceable or dead then also the Will can be probated and their signature can be formally proved by those who are well known about their identity and signature.

How Much Is A will 2022 Ontario? ›

You can expect a lawyer-drafted will to cost anywhere from $300 to $1400 in Ontario.

Can a witness to a will be a beneficiary? ›

Anyone 18 years and over can witness or sign a will, but importantly, a beneficiary can't witness a will, and neither can their spouse or civil partner. In many cases, people will ask a friend or work colleague to sign and witness the will.

Who can witness a will in Ontario? ›

The two witnesses must be age 18 or older. They cannot be a beneficiary under the Will, nor can they be married to or an adult interdependent partner of a person who is a beneficiary under the Will. The executor named in the Will can be a witness as long as he or she is not also a beneficiary.

Where should I keep my will in Canada? ›

An original copy of your will should be stored somewhere safe, in a place that is known and accessible to your executor. If you're keeping your will at home, we recommend storing it in a fireproof box or bag.

How do I register a will in Canada? ›

In Canada, there is no way to register a Will until after you have died, and at this time, the Will is registered with the probate courts. In some Provinces, like British Columbia, you are able to register the location of your Will for a fee, with the department of vital statistics.

How do you look up someone's will online Canada? ›

Visit the Canada Will Registry website and click the Search for a Will button to prepare your Search Query. If you'd like to register your will, to ensure that it can be found when it's needed, Willful customers can register their wills on the Canada Will Registry at no charge.

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