Wills are a powerful tool that people can use to ensure that their families and loved ones are cared for after they pass away. The purpose of a Will is to convey the Testator’s wishes regarding the distribution of their properties and assets.

Although not mandatory, Wills are often drafted by a lawyer. For a Will to be validly executed, section 4(2) of the Succession Law Reform Act, R.S.O., 1990, c. S.26 (“SLRA”) states that a Will must be signed at its end by the Testator (or some other person in the Testator’s presence by the Testator’s direction) in the presence of two or more attesting witnesses who will also subscribe the Will at the same time. More specifically, in order for the Will to be deemed valid in Ontario, the SLRA requires the two witnesses to be present when the Testator signs and dates the Will.

Due to the COVID-19 pandemic, several provinces have implemented virtual witnessing of legal documents. Effective August 1, 2020, O. Reg. 431/20 was enacted to permit remote commissioning in Ontario. In order for Wills to be witnessed remotely and in counterpart, at least one of the witnesses must be a lawyer licensed by the Law Society of Ontario. “Remote witnessing” means that the signing of Wills can be completed with audio-visual communication technology. “In counterpart” means the witnesses can sign their respective copies of the Will. Furthermore, all the signed copies must be kept together in order to finalize the Will. Wet signatures on paper documents are still required in Ontario.

Such Wills are known as a “Formal Will”. A Formal Will is the best way to convey the individual’s wishes and intentions regarding their Estate.

Requirements for Formal Wills

• The Will must be created by an individual of sound mind, and over the age of majority in Ontario (age of 18);
• The Will must be made by the Testator – no one else can make it on their behalf;
• The Will must be signed in the “presence” of two valid witnesses;
  • A witness should not be a beneficiary or the spouse or parent of any beneficiary;
• The witnesses must sign the last page of the Will together with the Testator;
• The Will must be signed in “wet ink” (a pen, seal, or other identifying mark) and stored as a physical copy.

Holographic Wills in Ontario

The second kind of Will recognized in Ontario is known as a Holographic Will. According to section 6 of the SLRA, a Testator may make a valid Holographic Will in Ontario wholly by their own handwriting and signature, without formality, and without the presence, attestation, or signature of a witness.

Requirements for Holographic Wills

• The Holographic Will must wholly be the handwriting of the Testator;
• The Holographic Will must be signed by the testator at the end of the document;
• The Holographic Will must contain a “deliberate or fixed and final expression of intention as to the [Testator’s] disposal of property upon death”;
• Any gifts ‘below’ the signature are NOT be valid;
• Holographic Wills do not require witnesses;
• Holographic Wills do not require a date (although this can be very helpful).

Changes to Existing Wills – Holographic Codicils

A Codicil is a legal document used to make minor modifications to an already existing Last Will and Testament. A Codicil has the same signing requirements as a Formal Will.

To create a Holographic Codicil in Ontario, the entire amending document must be handwritten, with the date and signatory at the end of the document.

Codicils are typically used for:

• Changing the name of an executor, guardian, or beneficiary.
• Adding or deleting specific bequests.

It is generally not recommended to have more than one Codicil to a Will, as multiple documents may lead to misinterpretation of the Testator’s intentions.

The Case of Lacroix Estate, 2021 ONSC 2919

The Testator, Rebecca Lacroix, instructed solicitor Margaret Opatovsky to prepare her Will while she was hospitalized with late-stage cancer in 2020. Due to COVID-19 restrictions, Opatovsky was unable to visit Lacroix in the hospital to have the Will properly executed. Consequently, she delivered the typewritten Will to the hospital and advised Lacroix to create a Holographic Will incorporating the draft Will.

Accordingly, Lacroix stated in a handwritten note:

“I, Rebecca Stephanie Lacroix, declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.”

She attached this note to the draft Will and initialed each page.

When the Estate Trustee named in the draft Will applied to the Court for a Certificate of Appointment, the Court denied the Application.

The Court examined sections 6 and 7 of the SLRA and found that the Holographic Will met the legal requirements. However, the Holograph Will alone was not a valid testamentary document, as it did not independently dispose of any property.

Additionally, the Court ruled that a Holographic Will cannot incorporate by reference a typewritten document—it must be wholly in the deceased’s handwriting.

Recent Legislative Amendments to the SLRA

The Accelerating Access to Justice Act is a large omnibus Bill that amends various Ontario statutes and regulations, including the SLRA.

Key Changes Effective January 1, 2022

• Section 21.1 now gives the Superior Court of Justice the authority to validate and render effective a non-compliant Will if the Court is satisfied that the document expresses the Testator’s intentions.
• Electronic Wills are excluded from this provision.
• Previously, Ontario required strict compliance—meaning the Court had no discretion if a Will was not properly executed under the SLRA.
• Under section 21.1, improperly signed Wills now have more flexibility, allowing the Superior Court to validate non-compliant testamentary documents.

It is important to note that applications under section 21.1 are only valid if the Testator’s date of death is on or after January 1, 2022.

Conclusion

Recent amendments to the SLRA indicate that Ontario’s laws on Wills and testamentary documents are evolving. However, Ontario still lags behind provinces like British Columbia, where digital signing of Wills is legal. Courts should clarify the legal status of incorporating typewritten documents into Holographic Wills.

For more information regarding Wills, Trusts, and/or Estates related topics, please contact Kelli Preston at Devry Smith Frank LLP at (416) 446-3344 or kelli.preston@devrylaw.ca.

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique, and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situations and needs.”

This blog was co-authored by Owais Hashmi*