Toronto Wills Fight Lawyer
Due Execution of a Last Will and Testament
A Last Will and Testament must be executed properly. “Execution” refers to the process of signing a Last Will and Testament. Part 1 of the Succession Law Reform Act R.S.O. 1990, c.S.26 sets out the specific, strict requirements that have to be followed in order for a Last Will and Testament to be valid when it comes to execution. These requirements are often referred to as “due execution”.
To be duly executed, a Last Last Will and Testament and Testament must be in writing and it must be signed. Sections 3 and 4 of the Succession Law Reform Act set out these two requirements:
Will to be in writing
3.A will is valid only when it is in writing. R.S.O. 1990, c. S.26, s. 3.
4.(1)Subject to sections 5 and 6, a will is not valid unless,
(a) at its end it is signed by the testator or by some other person in his or her presence and by his or her direction;
(b) the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and
(c) two or more of the attesting witnesses subscribe the will in the presence of the testator.
(2)Where witnesses are required by this section, no form of attestation is necessary. R.S.O. 1990, c. S.26, s. 4.
Strict Formal Requirements
Unlike some other jurisdictions in Canada, Ontario does not have the benefit of any “substantial compliance” legislation. In other words, the Succession Law Reform Act specifically states that a Last Will and Testament is not valid unless it is signed by the testator or by some other person in his or her presence and by his or her direction. The testator also has to acknowledge or make the signature in the presence of two or more attesting witnesses, who are present at the same time of signing and those two witnesses also have to sign the Last Will and Testament in the presence of the testator as well. If these conditions are not met, the Last Will and Testament is deemed invalid, regardless of whether some or most of the requirements are met.
In some other provinces, the legislation allows a court to admit the Last Will and Testament to probate if the court is satisfied that the Last Will and Testament is the true expression of the wishes of the testator, but that is not the case in Ontario.
Although seemingly straightforward, the issue of due execution is one of the most commonly litigated issues in estates litigation. This is due in large part to the prevalence of “do-it-yourself” Last Will and Testament kits, where people prepare their own Last Will and Testaments, not realizing that a seemingly small technicality can invalidate their Last Will and Testament entirely.
Wills and Estates Litigation
Litigation in this area is by no means restricted to “do-it-yourself” Last Will and Testaments. Last Will and Testaments prepared by lawyers are also commonly the subject of this type of litigation. There seems to be a common misconception that drafting a Last Will and Testament is a simple and straightforward matter. In truth, Last Will and Testament drafting and execution can be a complex and demanding task. A Last Will and Testament that is improperly drafted or executed can give rise to a claim for negligence against the lawyer responsible for the flaw. It is advisable that a Last Will and Testaments lawyer be used for drafting a Last Will and Testament to prevent this situation from arising. The cost of retaining a competent Last Will and Testaments lawyer to draft the Last Will and Testament is minimal when compared to the potential cost of litigation where the Last Will and Testament was prepared improperly.
It should be noted that the requirement of two or more attesting witnesses does not apply in the case of the will of “a member of forces on active service”. This includes (a) a member of the Canadian Forces placed on active service under the National Defence Act (Canada); (b) a member of any other naval, land or air force while on active service; or (c) a sailor when at sea or in the course of a voyage. Such a person may make a will by “a writing signed by him or her or by some other person in his or her presence and by his or her direction without any further formality or any requirement of the presence of or attestation or signature by a witness”
The rules of due execution also do not apply in the case of a holograph will. To be a holograph will, a document must be clearly intended to act as a last will and testament and must be completely in the testator’s handwriting and signed by him or her. Any material coming after the signature of the testator will not form part of the Last Will and Testament for the purposes of administration. Section 6 of the Succession Law Reform Act states that “a testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness”.
In sum, if you suspect that a Last Will and Testament was not executed properly, it is open to you to challenge the Last Will and Testament on that basis. In order to succeed on such a challenge in Ontario you will only need to prove that the technical requirements under the Succession Law Reform Act were not met. If that is established, the Court will not inquire further to determine the intent of the testator. In such a case, the Last Will and Testament will be invalidated and, unless there is another Last Will and Testament in existence, the estate will proceed based on the rules of intestacy.