What is A Valid Will?
November is Make A Will Month in Ontario. Having a will is recommended to help avoid extra costs in the administration of the distribution of the estate and leave more money to your loved ones. To make a valid will there are several requirements that need to be present. The Succession Law Reform Act, prescribes as follows:
The testator must have the mental capacity to make a will.
The will must be in writing.
The testator must sign the will in the presence of 2 attesting witnesses who do not benefit under the will. Audio-visual communications technology is permitted if at least one of the witnesses is a lawyer.
A person may in some circumstances make a will in his or her own handwriting, without formality and witnesses. This type of will is known as a holograph will and it has different requirements than a regular will. A holograph must be written in whole in the testator's own handwriting, not typed or partially typed, and signed by the testator at the end. It must also be a full and final expression of how the testator whishes to dispose his property. The burden to show that the holograph will is a valid will lies with the party who seeks to have the instrument declared valid by the courts.
If a will fails to be probated, the estate will be distributed in accordance with the last previous valid will of the deceased person, or the intestacy rules if there is no other will.
The best way to make sure that your estate is distributed in accordance with your wishes is to work with a lawyer and create an estate plan. As part of the estate planning, the lawyer can advise you on how to minimize estate taxes, maximize the amount you leave to your beneficiaries and increase contributions to charities without reducing the value estate. For a no-charge consultation on your will, please contact our office.