A “formal” will must be signed at its
physical end by the testator and by at least two witnesses. Although the statute requires
that the testator either sign or acknowledge his signature before at least two
witnesses who are present at the same time, each of the required witnesses need
sign only in the presence of the testator. Nonetheless, it is good practice to
have all three of the signing parties in the room at the same time while each of them signs. Neither witness
should be a beneficiary nor the legal spouse of a beneficiary. Otherwise, any
bequest or devise to the beneficiary will be void, unless a court is satisfied that neither
the beneficiary nor the spouse exerted “any improper or undue influence” on the
testator. An affidavit of execution from one of the witnesses should be procured at the time
the will is signed or as soon as possible thereafter. This ill avoid the
problem and added costs where, at he time the will is to be submitted for
probate, each of the witnesses is deceased, mentally incapacitated or simply
cannot be found.
In Ontario,
it is possible to make a valid will entirely in one’s own handwriting (again,
with the signature of the testator at the physical end of the will). Such a
will requires no witnesses or other formalities of execution. While rarely
advisable, the ability to make a holograph will (or codicil) can sometimes be
useful in emergency situations where:
• the client knows what he or she wants to
do but time or other constraints preclude a meeting with the lawyer; or
• there is no second independent witness available to complete a formal will.
In the former situation, it may be
sufficient for the lawyer to dictate the essential terms of the will (or
codicil) over the telephone or to send the text via fax or e-mail.
by Ryan Carson