So you wonder, who can witness a will in Ontario. Most likely, the shortest answer you can get is “anyone, as long as they’re not beneficiaries or their partners”. And it would be right in most circumstances but it’s definitely not all there is to know.
The subject matter is rather complex, though easy to dissect once we apply current laws and our practice. Here is all you may need to know about will witnesses to secure the integrity of your last wishes.
Who can witness a will in Ontario?
No long introductions. In accordance with the Succession Law Reform Act, “a competent witness to prove the execution of the will or its validity or invalidity” is anyone who is:
- Of the majority age;
- Mentally sound;
- Not a beneficiary of the will;
- Not a spouse, partner, or a minor of the beneficiary.
This extensive list leaves you with pretty much the whole adult population of Ontario, with just a few people in your closest circle included. And it’s not that far from the truth:
There are no requirements to your relationships with the person that can witness your will.
So, if you’re wondering if it can be one of these popular choices, all of these people can witness your will:
- Coworkers;
- Friends;
- Neighbors;
- Attorney’s office staff;
- Notary (though it is unnecessary, their powers do not play a role in this process);
- Nursery home staff;
- Random person you meet on the street (which we do not recommend).
This scope may seem vague, but it’s more than reasonable once you understand the role of the witness. And given that it might be a hard choice to make, here are all the details to know about this person to pick the right one.
The role of the witness: a simple, yet tricky concept
Your witness signs the will, but is not obliged to review it or even care about the contents of it.
The person should witness the act of signing the document — see that you sign it yourself, not what you sign.
In other words, their role is to be simply present to observe your testamentary capacity. Not even “physically present” (we’ll cover that later). Their presence ensures that they can attest to the authenticity of the document and your intent:
- Witness that you, indeed, sign the document yourself;
- Witness that you’re not forced or manipulated into signing it;
- Witness that you understand what you sign and all the complications of it.
The presence of impartial witnesses is key to upholding the will’s validity in court in case it’s challenged. Their testimony can be instrumental in confirming that you were of sound mind and under no duress when making your will.
Keep in mind that you need two witnesses, not one
It’s important that this person is NOT alone. You, as the testator, can ask three witnesses to be present, four, and as many as you want, but 2 is the minimal requirement in accordance with the current law. The act states it clearly:
“a will is not valid unless […] the testator makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time.”
How does it work?
What does our practice say? The absolute majority of procedures rely on just two witnesses. There is no correlation between the validity of your will and the number of people witnessing you signing it, as long as at least two people are present.
Can witnesses be related to each other?
There are no requirements for their relationship: your witnesses can be a husband and wife, your friend and your coworker, two relatives who do not stand as direct or indirect beneficiaries of the will, a married couple that happen to be your neighbours. It does not truly matter to the validity of the will.
Who can be your witness when you sign a will?
The Ontario law leaves this choice for you to make. We can help you narrow down the scope by defining every
Sound mind: the definition
“Sound mind” means the witnesses must be mentally capable of understanding the act of witnessing a will.
No, “sound mind” does not require a doctor’s certification and presence. It just means that your witnesses should know that they are witnessing the signing of a will and understand the importance of this document.
It’s actually pretty simple, to the point that it’s generally assumed, unless there is evidence of mental incapacity. However, we don’t even need to go into medical details to define it: in 2003, the Ontario Court of Appeal already defined it in the Hall v. Bennett Estate case. To be “of sound mind”, must “understand the nature and effect of a will”.
There are way more requirements for you as the testator, but they refer to the content of the will and do not affect your witnesses.
“The age of majority” defined
This part does not require in-depth explanations. The “age of majority” in Ontario is 18 years old. It’s just a more formal way to say that the person is an adult. Children, under the current Ontario law, can’t witness a will, and there are no exceptions to this rule.
Understanding beneficiaries
A beneficiary is anyone who receives or stands to receive any gifts from your will. And they can not be witnesses under any circumstances: it not only invalidates the will, but also impairs their chances of receiving the gifts as described in the documents.
In other words, witnesses must be impartial and should not stand to gain financially from the will. This ensures the process remains unbiased and fair.
To avoid conflicts of interest, beneficiaries or their spouses should not witness a will. If they do, any gifts to them or their spouses are generally considered void unless two other non-beneficiary witnesses also sign.
Exceptions to rules: are there any?
Despite rather strict requirements, certain exceptions under the current Ontario law do exist nowadays:
- For instance, if a witness marries the testator after signing, they might still inherit under the will. However, if they decide to change the will after marriage and the partner stands to profit from it, they can’t witness again;
- Also, members of the Canadian Armed Forces are subject to different rules under specific conditions. Their unique circumstances and potential inability to adhere to standard procedures is a whole different complex topic;
- Courts can intervene if a beneficiary serves as a witness. It usually occurs when there’s evidence suggesting that excluding a beneficiary from inheriting would go against the testator’s intentions.
In exceptionally rare cases, Canadian courts have validated wills even when witnessing requirements weren’t met. Each of these instances involved extraordinary circumstances where the testator’s intentions were clear but formalities were overlooked for a variety of reasons.
We don’t recommend taking the regulations lightly: it’s much better to be sure that your relatives will have no extra legal issues on top of mourning after you pass and your will comes into play.
What if someone can’t witness a will being physically present? Can you witness a will Online?
The short answer is yes, they can. You can witness a will (and power of attorney) electronically in Ontario since 2021’s Bill 245, Accelerating Access to Justice Act.
Your witnesses can use Zoom or any other “audio-visual communication technology” that allows participants to “see, hear and communicate with one another in real time.”.
It’s crucial that one of your witnesses, in case you need remote witnessing, should be “a licensee within the meaning of the Law Society Act at the time of the execution.”
You’ll also need a way to make digital signatures. As far as we are concerned, one of the most common and accepted ways to sign anything digitally is DocuSign and similar software.
When do you NOT need a witness?
There are cases when you can skip the part of choosing who can witness a will completely. And this case, at least the most common one, is so-called holographic will, also known as “the will you just write by hand”.
The purpose of the witness is to prove that you’re the one who signed your witness and you know what it says. If you write the whole document by hand and sign it yourself, you don’t need anyone to prove it. It comes as a fact.
Yes, it might look a little outdated in our digital age, using pen and paper, but it offers more technical options to the parties that might need to prove or disprove the will.
Just so it’s clear, here’s the difference between a will you write by hand or the one you sign with your wills attorney, like us.
Holographic will: No witnesses needed
A holographic will is entirely handwritten and signed by the testator (you, the author of the will), and it bypasses the standard need for witnesses.
There are no requirements as to the use of templates (aka will kits) or specific formatting. The only one to keep in mind is that you have to hand-write everything yourself, no printed parts.
You can use a regular pen and a standard A4 paper, or a napkin and a crayon (which we do not recommend): as long as it’s hand-written in your handwriting and signed by you, it’s a legal document.
A holographic will might seem convenient, but it comes with its own — and a considerably big one — set of risks.
The downsides of a holographic pen-and-paper will
The primary concern lies in their potential for misinterpretation and challenge in court. Without the clarity provided by legal professionals and formal witnessing, these wills are significantly easier to contest. Even more, holographic wills are not suitable for complex estates.
Simplicity does not cater well to asset distributions or complex conditions. It sure is a better option than leaving no will at all, though.
And finally, not everyone recognizes holographic wills. It may be taken seriously in Ontario (though still, with real estate involved, would result in some challenges), but these provinces don’t recognize the format at all:
- Newfoundland and Labrador;
- Nova Scotia;
- Nunavut.
Quebec has notarized wIll as an additional format, but it’s not the topic of this guide and we won’t focus on it.
Formal will: you need two witnesses
Also known as an attested will, this type must be in writing, signed by the testator in the presence of two witnesses, who also sign the will in the presence of the testator.
This is, in simple terms, a professional will. The one that is:
- SIgnificantly harder to challenge, since you have a legal professional to help you formulate it carefully, for every possible scenario;
- Hard to contest based on “mistakes”, vague terms, or formal issues, such as your “sound mind”, given that you have two witnesses to back your will’s validity;
- Unlimited in terms of complexity. As long as it does not contradict the laws of Ontario, you can make your will as complex and detailed as you wish.
A formal will, especially when it comes to real estate law, is superior to the holographic option. It requires extra effort, but this effort is worth it: including finding witnesses.
If anyone can, who SHOULD witness a will in Ontario?
You know who can witness a will in Ontario now. But who should it be?
This part deals not with the legal requirements but with the pure nature of the process and understanding the complications of it.
You need a witness so that someone can prove the validity of your will in case it’s challenged in court. So your witnesses should be ready to come to the court after your passing and prove it.
First of all, these witnesses should be easy to find. They leave their full name, address, and contact info in the will when they sign it, but if it’s a random person you just ask for a favor, it might be hard to locate them in case your will is contested.
Things to keep in mind when choosing someone to witness a will
Here’s what you can keep in mind to make the life of the will’s beneficiaries easier, when it comes to witnesses:
- Choose someone who will be easy to find. Either associated with the attorney or with your family and the closest circle;
- Someone who will not see coming to court to defend your will, if called, as a burden and won’t try to avoid it;
- Someone who will understand the importance of your will and the matters that might complicate it, who’d cooperate with your lawyers and take coming to your “sound mind”’s defense as their duty, with full responsibilities acknowledged.
Finally, choose someone who’d have no personal interest in proving or disproving your will’s validity.
The law excludes the most obvious part of possible interested parties (beneficiaries and their spouses), but we know that family matters and social relationships are rarely that simple. Especially when it comes to real estate and inheritance disputes.
The Final Word
If you find it hard to find a witness to prove your testamentary capacity and stand by your sign when you sign the will, don’t worry. It’s a much more common issue than it appears to be.
We see it a lot:
- First, your whole family is all listed as beneficiaries, directly or indirectly, and you can;’t pick someone from your closest circle;
- Next, some of your friends and coworkers unexpectedly turn you down. Not out of malice, of course. Just because some of them are busy, some are afraid of the responsibility and don’t understand the process, and some see going to court to defend your will’s validity as a burden.
We believe you can eventually find someone you can trust and who will agree to be a witness. However, in some cases, you might be left with just a few options:
- Complete strangers (which is not a good idea);
- Paying someone to sign it (which is another questionable approach);
- Or asking if your wills lawyer can provide reliable witnesses.
The third option is actually the safest and the most common solution.
It’s almost an industry standard and it’s what we see every day with formal wills. Be it a mirror will or a secondary will, our staff qualifies as witnesses, and most importantly — we understand the importance of proving your will’s validity in case it’s questioned.
So, as the final word: even though it might appear complicated at first, finding someone who can witness a will in Ontario is not that much of an issue and we’re here to assist you in this process.
Common questions on will witness ordeals in Ontario
Why do you need witnesses, in the first place?
You need witnesses because your will has no validity “by default”. Anyone can write a will and sign it as you, it’s called fraud and forgery. For everyone to be absolutely sure that you’re the one who signed the will, you did it fully understanding what you’re doing, and you were not forced or manipulated into signing it, you need at least two independent, impartial witnesses to confirm it. You need witnesses to give more power to your will and make sure that after your passing everything is executed exactly as you want it to be.
Which types of wills need witnesses?
A holographic (hand written) will does not require witnesses, but you should write it entirely by hand, in your own distinctive handwriting. A formal will is only valid if signed by two witnesses.
Can you rely on a notary or an attorney with witnesses in signing your will in Ontario?
In case these are licensed and reputable professionals, you can. It’s not uncommon nowadays: every attorney office that has to work with wills has professionals on stand-by, ready to be present in the process of signing and help to prove your will’s validity in court, if needed.
What are the current witness signature rules Canada?
The Succession Law Reform Act covers extensively the testator’s signature, but not the witnesses’ signatures.
It’s stated strictly that your signature should be “placed at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will”
When it comes to your witnesses’ signatures, they should be on the same page as yours in the end of the document. As a standard, they should be below your signature. And it’s a good practice to sign every page of the will at least with initials, using the same pen if possible.
Where to find a witness? Can a stranger be a witness to my will?
Legally, they can. There are no rules that would prevent a stranger from being a witness (as long as they’re over 18 years old, do not stand to profit from the will, and have no basis to claim that they’re not in a sound state of mind at the moment of signing. However, we do not recommend it.
A complete stranger might be hard to find in case someone challenges your will. They might have mental health conditions that are not easy to detect on the spot (and that would potentially undermine your will’s validity). They might be reluctant to go to court and testify to prove your will’s validity, if needed. It’s legal, but it’s not a good idea.
It’s a much better idea to choose someone who’s either associated with the attorney and understands the legal weight of the process, or someone who’ll take the ordeal seriously in case your will is contested.
Can I pay someone to witness my will?
It’s not recommended to pay someone to witness your will, as it can create a conflict of interests. Your witnesses should be independent and disinterested. There are professional witnesses and companies that provide witness services for a price, but they’re covered by internal regulations.
If you have no one to witness your will and your attorney is (which is unlikely) unable to find someone reliable as well, you might ask a coworker or even a stranger, and show your gratitude for their favor and their time after the process in any way you want. However, it should not affect their decision to prove or disprove your will’s validity.