Legally Valid Will in Canada: Requirements

A legally valid Will in Canada is an big part of successful estate planning. It true that it you might not really need it if you don’t have many assets to distribute, but it’s vital when the inheritance is bigger than average (>$50,000). In this case, a Will properly distributes your legacy in accordance with your wishes.

It also makes the future easier and more certain for those you leave behind. Spend a bit of time and effort to learn legally valid Will requirements now to save much more in the future.

What Are the Requirements for a Will to be Valid in Canada?

Everything becomes more challenging when you don’t a Will or if it isn’t legally sound. Without it there’ll be a need for a probate process. It isn’t beneficial at all and more than unprofitable for common-law spouses, charities and close friends. They are likely to receive nothing (even if you don’t plan this) since the law distributes your property to your closest relatives first. It is also a must if you have minors in custody.

Note that the Will requirements can be slightly different for each province in Canada. To make sure that there are no mistakes in your document, you can contact De Krupe Law wills and estate planning lawyers.

Below is a checklist for you to make sure your Will is legal and can hold up in court:

Age Restriction

You must be over the age of majority in your province and of sound mind. There are specific circumstances that allow you to have a Will even if you are underage, like you being married, haveing minor children, or being a member of the armed forces.

Physical Will

You can’t store a Will online (outside British Columbia). A Will must be in written form and stored as a physical copy on paper. Only the original signed document is considered valid. Copies or scanned versions are not accepted as legal documents

Will Witnesses

You and two witnesses need to properly sign a Will. Make sure to properly check a guide on who can witness a Will in Ontario, to make sure the rule compliance. The testator’s (your) signature must precede the signature of either witness. The two witnesses must be at least 18 years old and of sound mind. They also cannot be beneficiaries of the will or spouses of beneficiaries.

It will be perfect if you and your witnesses are in one location. However, ever since COVID, witnesses can sign the document using a video link if one of the witnesses is a licensed lawyer or paralegal. Your signature must be at the end of the Will, but it’s even better if you additionally sign each page. Someone else can sign your will only if they have Power of Attorney or other legal grounds to do so.

Your signature

In either kind of will (typed, holographic, online), your signature must be at the very end of the document. The two witnesses must also sign the document.

All the general requirements to draft a legally valid will in Canada are stated above. Each circumstance is unique, so we advise consulting with a legal specialist to avoid mistakes.

Do I Need a Lawyer to Draft a Legally Valid Will in Canada?

You don’t need a lawyer or notary to draft a will. Even though a lawyer’s assistance makes the process easier for you, it is not an actual requirement. The document can be completely handwritten (so-called holographic Will), made online, using will kits, or typed. You can comply with the requirements stated above to create a it without a notary.

Still, we recommend contacting an expert to avoid costly mistakes in the future. Especially if your estate is complex or if there are potential disputes among heirs. In such cases you need to be especially careful to ensure that your wishes are respected.

Every will, even made by the most experienced lawyer, can be contested. What is it and why?

Why Can Someone Contest My Will?

Contesting a legal document a long and tiring legal process. It starts if someone thinks that the document isn’t legally valid. There must be serious evidence to make the court overwrite your wishes. Common reasons to contest include:

• Lack of mental capacity (a person who contested your Will believes you weren’t of sound mind when you drafted or signed it)
• Undue influence (someone may have influenced your decision to distribute your assets the way you did (fraud or forgery))
• You haven’t signed a family member (even if you don’t want to gift anything for whatever reason, you can’t just cut off a family member)

For such cases, the De Krupe Law team has a litigation lawyer who can support you if someone contests it.

Changing a Will

If you need to make any changes to your will, the most straightforward approach is to create a new one. When drafting a new will, include a clause that revokes all previous wills. Alternatively, you can use a codicil. It’s s a legal document that amends your existing will without needing to rewrite it entirely. However, it also must be signed and witnessed in the same manner as the original will to be valid.

Legally Valid Will in Canada FAQs