A Will is a testamentary document wherein you express how you want your properties to be shared amongst families, friends, and acquaintances. These properties may be tangible, intangible, real, and personal. Notwithstanding that you prepare your Will whilst you are alive, it only takes effect upon your death. This means that a beneficiary cannot inherit a property whilst you are alive, and more importantly, you can change your will as many times as possible provided it meets the requirement of the law in your province.
What are the requirements of a valid Will?
For a Will to be valid, it must comply with the requirements that have been laid down by the law. This however may differ owing to the province you reside in. The requirements of a valid will are:
- Writing: this is the first requirement of a valid Will. Most provinces have it stated in their laws that a will must be in WRITING. However, in the province of British Columbia, one may dispense with the requirement of writing a Will and it will not vitiate the validity of the will
- Sound Mind: This requirement means that one must be mentally fit and not have any impairment of the mind. If this requirement is not met, the will may be vitiated.
- Age: A testator must have attained the provincial age of maturity. There are however exceptions to the requirement of age. An example is in the case of a testator serving in the military, he/she is permitted to make a Will even when they have not attained the requisite provincial age.
- Signature and Attestation: For a Will to be valid, it must be duly signed by the testator in the presence of two witnesses. However, the witnesses need not sign in each other’s presence, unlike the testator who must sign in the presence of both witnesses. On April 23, 2020, in response to the outbreak of COVID-19, the Ontario government passed an emergency order, O. Reg 129/20, to temporarily permit the virtual witnessing of wills and powers of attorney. Bill 245 amended the Succession Law Reform Actand the Substitute Decision Act retroactively to April 7, 2020, in line with the provisions of the emergency order, permanently allowing for remote witnessing of wills through the means of audio-visual communication technology.
Please note that the order in which you and the witnesses sign is important; your signature as testator must come first. Additionally, no gift or donation must come after your signature. Any gift or donation that comes after your signature is invalid and void.
Who can be a witness to a will?
As a matter of law, ANYONE can be your witness provided they are not beneficiaries or spouses to any of the beneficiaries of your Will. Hence, anyone who has attained the age of majority can serve as a witness, family members, close friends, and even co-workers.
Also, the law prescribes at least two person witnesses whilst you sign your Will.
Can a beneficiary be a witness to a will?
As stated, you can use any person as a witness to your will. However, if you use your beneficiary as a witness, such beneficiary stands the risk of losing the gift donated to them if the will is challenged.
Who cannot be a witness to a will?
The following persons cannot serve as witnesses to your Will:
- A Minor
- Beneficiaries of your will
- Beneficiary’s spouse.
Can a Notary Public be witness to a will?
Anyone can be a witness to your Will, including a Notary public.
Does your will have to be witnessed?
Your will MUST be witnessed by at least two persons. The only condition in which you may not use a witness is if the Will is holographic, that is HANDWRITTEN by you.
What is the importance of witnesses?
Apart from the obvious requirement of law depending on the type of Will you want to execute, the essence of witnesses to a Will is to ensure that there was no undue influence, fraud, or duress and that you are of sound mind whilst executing or signing your Will.
How can All-Canada Notary Help You?
All-Canada Notary is a network of notaries public, we can help you draft and equally serve as a witness to your Will. We also operate physical and virtual notary services. You can book your appointment online and get your will attested/witnessed with All-Canada Notary today.