Last Will and Testament in Ontario: Requirements & Types (2024)

A last will is a legally-binding document that allows you to control what happens to your estate and dependents after you die. Your will ideally also names an estate executor, who is the person responsible for carrying out the instructions in the will and for settling your estate. This person should be someone you trust to carry out this responsibility, and the duties of the role should be discussed in advance with the person you select to ensure that they’re prepared.

The will includes provisions detailing care for your dependents, such as young children or adult children with disabilities. A will only comes into effect after you die and it can be changed or updated—in fact, it should!—any time while alive.

You should review your will every few years or whenever there is a significant change in your family situation (e.g. birth, death, marriage, divorce).

If you die without a will in Ontario, the estate is distributed according to the rules of intestacy. Your estate will pass to your surviving spouse, children, parents, or other next of kin in a specific order set out by the law. This is regardless of whether or not you wanted them to inherit your estate.

Creating a last will and testament is the best way to ensure that your estate is distributed according to your wishes. You can also record wishes for pet care, donations to charity, and instructions for funeral arrangements in your will.

To create a legal will in Ontario, you must comply with the following requirements:

1. Age Requirement: You must be at least 18 years old when you make the will.
2. Sound Mind: You must be of sound mind and able to understand the nature and effect of the will.
3. Written Document: The will must be in writing (either typed or handwritten) and exist as a physical copy. Electronic wills are not valid.
4. Signature: You must sign the will at the end of the document.
5. Witnesses: The will must be signed by you in the presence of two witnesses, both of whom are present at the same time. These witnesses cannot be beneficiaries or the spouse of the testator.
6. Witness Signatures: The two witnesses must also sign the will in your presence.
7. Date: The will should be dated to provide a clear record of when it was created.

You can either handwrite your will (holographic will) or type it and then print and sign it (formal will). Holographic wills do not require witnesses, but formal wills do.

Creating a will does not have to be complicated. Follow these steps to make your will in Ontario:

1. Correct Titling and Proclamation: Title your document "Last Will and Testament of ________". Include the date, your full legal name, and address.
2. Appoint an Executor: Name one executor, and consider naming alternates if the original executor is unable or unwilling to serve. Provide their full names and addresses.
3. List Your Assets and Beneficiaries: Detail your assets and specify how you want them distributed. Include gifts or bequests to individuals, charities, or organizations. Specify how debts and taxes should be paid.
4. Include Executor's Authority: Explicitly state that you're giving your executor the authority to carry out these duties on your behalf.
5. Choose a Guardian for Minor Children: If you have minor children, name a guardian to care for them. Discuss this responsibility with the chosen person beforehand.
6. Add a Residual Clause: Include a residual clause to address any remaining assets not specifically mentioned.
7. Sign and Date the Will: Sign and date the will in the presence of two witnesses over 18 years old who are not beneficiaries. The witnesses must also sign the will in your presence.

Need to learn more about writing a valid will in Ontario? Read more about it in our in-depth blog post here.

Virtual Witnessing

In response to the COVID-19 pandemic, the Ontario government has allowed for the virtual witnessing of wills. This means that a will can be witnessed via video conference, as long as the following conditions are met:

• The testator must declare that the will being signed is their will in the presence of witnesses.
• At least one of the witnesses is a lawyer licensed by the Law Society of Ontario.
• The testator and witnesses are all present at the same time.
• The testator and witnesses are all able to see, hear, and understand each other throughout the will-signing process.
• The testator and the witnesses must all sign a physical copy of the will. The three signed copies are then stored together and constitute the complete and finalized will.

Does a Last Will and Testament Need To Be Notarized?

No, a will does not need to be notarized for legality in Ontario. A will only requires dates and signatures by the testator in the presence of two witnesses, as well as their respective signatures.

Who Are the Parties in a Last Will and Testament?

Parties involved in a will include:

• Testator or Testatrix: This is you - the person who creates the will;
• Executor or personal representative: The executor is the person named in the will to settle the estate. Their role is gathering estate assets, paying debts and taxes, and distributing the estate according to the will;
• Beneficiaries: These are the people who inherit estate assets or otherwise have a claim to the estate;
• Guardians: A legal guardian is a person who has the authority to make decisions on behalf of a minor. In estate planning, a guardian is named in the will to care for any minor children in the event of both parents become deceased. The same goes for adult children who are incapacitated and cannot care for themselves;
• Pet caretaker: You can name someone in your will to care for any pets you own.

Understanding the different types of wills available in Ontario can help you choose the best option for your situation:

Formal Will

A formal will, or attested will, is the most common and recommended type of will in Ontario. It must be in writing, signed by the testator at the end, and witnessed by two people who are of full age and not beneficiaries or their spouses. The testator must sign the will in the presence of the two witnesses, and the witnesses must also sign the will in the testator’s presence. This process can now be done virtually in Ontario, provided one of the witnesses is a licensed Ontario lawyer or paralegal.

Holographic Will

A holographic will is entirely handwritten by the testator and must be signed and dated. It does not require witnesses or any other formalities. For a holographic will to be valid, it must be wholly in the testator’s handwriting, signed by the testator, and demonstrate a deliberate or fixed and final expression of intention regarding the disposal of property upon death.

Online Will

While there is no specific legal category for "online wills" in Ontario, using online platforms to create a will can be a convenient and efficient option. These platforms guide users through the process to ensure all legal requirements are met. However, it is crucial to ensure that any online will complies with the legal requirements for formal wills in Ontario, including being signed in the presence of two witnesses and meeting all other formalities.

Additional Considerations

Each type of will has its own set of advantages and disadvantages. Formal wills are generally recommended due to their clarity and the reduced likelihood of legal disputes. Holographic wills, while convenient in urgent situations, can be more susceptible to challenges. Consulting with an experienced estate planning lawyer can help ensure that the chosen type of will meets all legal standards and aligns with the individual's specific needs and wishes.

Having a will is crucial for ensuring your wishes are respected and your loved ones are cared for. Here are some scenarios where creating a will is highly recommended:

• Marriage or Common-Law Relationship: If you are married or in a common-law relationship, a will helps you dictate how your assets should be distributed and who should manage your estate.
• Parenthood: If you have children, including adopted, stepchildren, or foster children, a will allows you to name a guardian for them and ensure their care and support.
• Separation but Not Divorced: If you are separated but not divorced and want to leave your estate to someone other than your spouse, a will is essential.
• Non-Immediate Family Beneficiaries: If you wish to leave estate assets to friends, charities, or other non-immediate family members, a will ensures your wishes are followed.
• Pet Care: You can make provisions for the care of your pets in your will.
• Property Ownership: If you own property, including a home, investments, or vehicles, a will helps you determine who will inherit these assets.
• Business Ownership: Business owners should have a will to specify who will receive their business assets and how the business should be managed after their death.

Creating a will provides peace of mind and ensures that your estate is handled according to your intentions. It is a fundamental part of estate planning that helps avoid the complexities and potential conflicts that arise when state intestacy laws apply.

If you pass away without a valid will, known as dying intestate, Ontario's intestacy laws determine how your estate is distributed. Here are the key implications:

Default Distribution

Your estate will be distributed to your next of kin according to a predetermined hierarchy set by law. This hierarchy includes:

• Spouse and No Children: The spouse inherits the entire estate.
• Spouse and Children: The spouse receives a preferential share (up to $350,000 if the death occurred on or after March 1, 2021) and the remainder is divided between the spouse and the children.
• Children and No Spouse: The children inherit equal portions of the estate.
• No Spouse or Children: The estate goes to the parents, then to siblings, nieces and nephews, and finally to other next of kin or the Ontario government if there are no living relatives.

Delays and Costs

The absence of a will can lead to delays in settling your estate and increased legal costs. This includes the need for a court application for a Certificate of Appointment of Estate Trustee Without a Will, which can be time-consuming and costly.

No Guardian Appointed

Without a will, you cannot designate a guardian for your minor children. The court will appoint a guardian based on the best interests of the child, considering factors such as the relationship between potential guardians and the child, the ability to provide a suitable home environment, and financial resources.

Exclusion of Common-Law Partners

Common-law partners are not automatically entitled to inherit any part of the estate if there is no will. They must prove dependency to receive any support and are not recognized as a "spouse" under intestate succession rules.

Additional Considerations

• Funeral and Burial Arrangements: Without a will, the funeral and burial arrangements may not align with the deceased's wishes, as these decisions are made by the court-appointed trustee.
• Charitable Bequests: If there is no will, any charitable bequests or specific gifts to individuals will not be honored.
• Financial Support: Financial support for dependents, such as elderly parents or grandchildren, may be discontinued without a will, as the court-appointed trustee may not continue such support.

Creating a will ensures that your assets are distributed according to your wishes and provides protection and clarity for your loved ones.

We Can Help!

At ClearEstate, we help you write a last will and testament that is legally binding in Ontario without the need for a lawyer or notary. If you’re finding yourself in need of help or guidance in drafting your will, don't hesitate to discover our Online Will offering or book a free consultation with our estate planning specialists, today.

Frequently Asked Questions (FAQs)

1. Can I write my own will in Ontario?
Yes, you can write your own will in Ontario. This can be done through a handwritten (holographic) will or a typed will. However, to ensure the will is legally valid and covers all necessary provisions, it is recommended to consult with a professional or use a reputable online will service.

• Holographic Wills: Ontario recognizes holographic wills, which must be entirely handwritten by the testator, written on a piece of paper, dated, and signed by the testator. No witnesses are required for holographic wills.
• Typed Wills: For typed wills, the testator must sign the will in the presence of two witnesses, who must also sign the will in the presence of the testator.

2. Do I need a lawyer to make a will in Ontario?
While it is not legally required to have a lawyer draft your will, seeking professional guidance can help avoid errors and ensure the will is valid.

• Legal Advice: Hiring a lawyer can provide guidance on Ontario’s laws and help address complex estate issues, such as properties in other provinces or family complications.
• Online Platforms: Using an online will service can also provide a cost-effective and legally valid option, though it may not address all complex issues.

3. How much does it cost to make a will in Ontario?
The cost of making a will in Ontario can vary significantly.

• Lawyer Fees: Hiring a lawyer to draft a will can range from a few hundred to over a thousand dollars, depending on the complexity of the estate.
• Online Wills: Online will services are generally more affordable and can provide legally valid documents at a lower cost. ClearEstate's online will offering starts at $249.

4. Can I update my will after it's been written?
Yes, you can and should update your will whenever significant life events occur.

• Life Events: Significant life events such as marriage, divorce, the birth of a child, or acquiring new assets require updates to the will to ensure it reflects your current wishes.

5. What happens if I don't name an executor in my will?
If you don't name an executor, the court will appoint someone to administer your estate.

• Court Appointment: Not naming an executor can lead to delays and additional costs, as the court will need to appoint an administrator. It is important to choose a trusted individual to carry out your wishes.