Making a valid will in Ontario is less complicated than most people assume, and the rules are stricter than most people expect. The province sets out specific formalities, and a will that misses them can fail entirely, leaving an estate to be distributed by a statutory formula that may bear no resemblance to what the deceased wanted. The law in this area also changed meaningfully in recent years, so wills prepared under older assumptions deserve a fresh look. Understanding the requirements, the traps, and the changes is the starting point for making sure your instructions are the ones that are actually followed.
The Formal Requirements for Making a Valid Will in Ontario
Wills in this province are governed by the Succession Law Reform Act. Under section 4(2), a will is not valid unless it is signed at its end by the testator, or by another person in the testator’s presence and at their direction; the testator makes or acknowledges that signature in the presence of two or more attesting witnesses present at the same time; and two or more of those witnesses subscribe the will in the presence of the testator.
Those three requirements do real work. The witnesses must be with the testator at the same moment, not signing one after another on different days, which is where informally prepared wills most often go wrong.
Section 4(3) now permits those presence requirements to be satisfied through audio-visual communication technology, provided at least one witness is a licensee under the Law Society Act at the time, and the making or acknowledgment of the signature and the subscribing of the will are contemporaneous. Remote witnessing is therefore available, but only with a lawyer or paralegal involved.
There is a second route. Section 6 allows a holograph will, made wholly in the testator’s own handwriting and signature, without formality and without any witness at all. A handwritten will can be valid. That is not the same as it being clear, complete or free from dispute, and holograph wills generate a disproportionate share of estate litigation.
The Mistakes That Invalidate Wills or Gifts
The most common and most painful error is choosing the wrong witness. Under section 12, where a will is attested by a person to whom, or to whose spouse, a gift is made under that will, the gift is void as it concerns that witness, their spouse, or anyone claiming under them. The will itself survives; the gift does not. Asking the beneficiary standing nearby to witness the signing is enough to destroy their inheritance.
Changes in personal circumstances matter too. Under section 17(2), where a marriage is terminated by a divorce judgment or declared a nullity, a gift to the former spouse, an appointment of the former spouse as executor or trustee, and a power of appointment conferred on them are revoked, and the will is read as if the former spouse had predeceased the testator. Section 17(3) extends that treatment to spouses who are separated at the date of death, as determined under the Act. Separation, not only divorce, can now change who inherits.
Note also what no longer happens: marriage does not revoke an existing will in Ontario. The provision that produced that result has been repealed. Anyone relying on older advice that marrying automatically cancelled a prior will should have that assumption checked.
When a Defective Will Can Still Be Saved
Section 21.1 gives the Superior Court of Justice power to order that a document or writing that was not properly executed is as valid and fully effective as the will of the deceased, if the Court is satisfied that it sets out the testamentary intentions of the deceased, or an intention to revoke, alter or revive a will.
This is a genuine safety net, and it did not exist in Ontario for most of the province’s history. It is not, however, a substitute for doing it properly. Relying on it means a court application, legal costs borne by the estate, delay in administering the estate, and an outcome that is not guaranteed. It also has limits: section 21.1(2) makes clear the provision does not open the door to electronic wills.
What to Do if You Are Making or Updating a Will in Ontario
Have the will professionally drafted and properly executed. The cost of doing so is a small fraction of the cost of an estate dispute, and the formalities above are easy to satisfy and expensive to get wrong.
Choose your witnesses carefully. Neither witness should be a beneficiary or the spouse of one. Choose your executor with equal care, and confirm the person is willing to act before naming them.
Review the will after any significant change: a separation or divorce, a new child or grandchild, a death in the family, the purchase or sale of a home, or the acquisition of a business interest. Remember that assets passing by beneficiary designation or by right of survivorship fall outside the will entirely, so those designations need to be reviewed alongside it.
Finally, store the original where your executor can find it, and tell them where it is. A will nobody can locate is, practically speaking, no will at all.
If you are making or updating a will in Ontario, George Habib, wills and estates lawyer at Habib Legal Counsel, will make sure your instructions are properly documented and will stand up. Visit HabibLC.com or call anytime at 647-648-2164 — George Habib and his firm are ready to help.
George Habib | Habib Legal Counsel | Wills & Estates | 647-648-2164 | Contact us
