Is a will invalid in Canada if you don't have two witnesses that saw you write the will in person and sign your will?

Question

Is a will invalid in Canada if you don't have two witnesses that saw you write the will in person and sign your will? I am not sure if I understand the law, but it seems like you're forced to print the will and have it signed and then have two persons as witnesses sign the will in order for it to be enforceable. Is this the case in the whole of Canada?

Answer 1

It seems like you're forced to print the will and have it signed and then have two persons as witnesses sign the will in order for it to be enforceable. Is this the case in the whole of Canada?

Subject to an exception for holographic wills (in all but one Canadian province) and choice of law issues, yes.

Ordinary Written Wills And Witnessing Irregularities In Them

A will does not need to be notarized to be valid, although the notarization makes the admission of the will to probate (i.e. the court process of determining that a will is legally valid) easier.

A will with one witness that is notarized by a separate person still meets this requirement, however.

Some people are not eligible to witness a will. So, if a will is signed by the testator and two witnesses, but one of the witnesses is ineligible to serve as a witness (e.g. because the witness is 7 years old, or has certain prohibited conflicts of interest), there is a problem.

But, I don't know what remedy would be applied in each province. Some jurisdictions allow a witness who was ineligible at the time and is not ineligible to be a witness at the time of death to testify and cure the defect. Some jurisdictions invalidate the will. Some jurisdictions, for example, in a case where someone not allowed to be a witness due to a conflict of interest witnessed the will, validate the will but void the rights of the ineligible witness under the will.

Other Irregularities In Written Wills

Some U.S. jurisdictions (including Colorado) and some jurisdictions in Australia, recognize the validity of the will that have immaterially defective formalities that were signed with an intent to be a will and have two witnesses.

For example, these jurisdictions might validate wills when the wife accidentally signed the husband's will and the husband accidentally signed the wife's will, both intending to sign their own will, or where "magic words" are missing from the execution clause or notarization, or where the testator's name is spelled inconsistently or incorrectly.

Ontario is a strict compliance jurisdiction. Any inconsistency with the formal requirements, as set out in the Succession Law Reform Act, renders a will invalid.

I do not know if any other Canadian provinces have a legal authorization to remedy or reform such an inadvertent error in the formal execution of a will. I suspect that some do, either by statute or case law, but don't know and don't have a good source for finding out.

Holographic Wills

A will written substantially in the handwriting of the testator (i.e. of the person making their will) and signed by the testator, also known as a holographic will, is valid in most, but not all, Canadian provinces. Some jurisdictions honor oral wills in the hand writing of the testator, even without a signature, if the text makes clear that the testator is making a will for himself or herself.

The provinces that consider handwritten wills legal are Alberta, Ontario, Manitoba, Quebec, New Brunswick, Newfoundland, and Saskatchewan.

Holographic wills are not recognized in the province of British Columbia. But if the will was written outside British Columbia and the concerned property is within BC, then the will can be upheld by the court.

Will Contracts

Even if a document is not itself a holographic will because it lacks language clearly intending to make it one itself and instead merely promises to make a will with certain provisions, a typed writing signed by someone who late dies can sometimes be interpreted as a valid contract to make a will that is enforceable in that fashion, even thought it is not itself enforceable as a valid will.

Oral Wills

No Canadian provinces recognize the validity of oral wills (also known as nuncupative wills), that are recognized as valid under some circumstances in other common law jurisdictions.

Any will not printed out in writing is an oral will, even if it is in a typewritten record in electronic form, and even if it has an electronic signature.

Bottom Line

A typewritten will merely signed by the testator, and not witnesses by two witnesses (perhaps with just one witness or no witnesses), or not printed out at all, would generally be invalid.

Choice of Law Exceptions

There is also a choice of law issue. Usually a will which is valid where entered into is valid elsewhere even if it does not meet the formal requirements of the place where it is admitted to probate at the time it is admitted to probate. This is why a holographic will executed outside of BC is valid in BC (even as to BC property) even though BC does not recognize holographic wills.

Most jurisdictions with common law legal systems also require that a will be in a writing signed by the testator and witnesses by two witnesses, so usually, it doesn't matter where the will was signed.

But, for example, Colorado has recently adopted a law authorizing certain will to be valid without being printed out, but to the best of my knowledge, no Canadian province has adopted legislation to this effect.

So, if you executed an electronic will in Colorado under circumstances where it would be valid in Colorado, a Canadian court might recognize it even though it doesn't meet the standards for a valid will executed in Canada.

Similarly, if an oral will was valid where it was made, but invalid in Canada, a Canadian court might still honor it.

Exceptions For Will Substitutes

Also note that while a will must always be in writing in Canada, there are circumstances when a trust may be established orally and without witnesses other than the person entrusted with assets.

Also, some beneficiary designations on bank accounts and insurance policies and retirement policies and transfer on death deeds, for example, that function as will substitutes, are not held to the formal requirements of a will, even though they dispose of property upon death just as a will does. These are usually valid if signed by the person making the designation and delivered to a third-party associates with the asset (or noted in real property records in the case of real property) prior to the death of the person making them.

Lost Wills

Unlike most legal documents, generally, a will is like a $20 bill, a photocopy or scanned copy is not as good as the real thing. Sometimes documents like this are called "real documents" or "real instruments." (Original promissory notes have the same character because they can be transferred to a new owner by endorsement of the original physical promissory note.)

This rule exists because, at common law and under the law still in force today in Canada and most common law jurisdictions, a will can be revoked by physically destroying or defacing the original with an intent to revoke it.

But, in the event that an original will is destroyed by fire or other disaster or malfeasance of a third party under circumstances that indicate that there was no intent to revoke it by the testator, the will can be admitted to probate based upon a paper or electronic copy of the original with adequate testimony regarding the unavailability of the original will.

Grounds For Contesting Facially Valid Wills and Will Substitutes

A will or will substitute that meets the formal requirements for a will or will substitute may still be invalidated, in whole or in part.

The most common grounds for doing so are:

• undue influence on the testator by a beneficiary of the instrument,
• lack of testamentary capacity which invalidates the instrument,
• inauthentic signatures that invalidate a will (i.e. a forged instrument),
• fraud in the inducement of the instrument,
• a benefit conveyed by the instrument to someone who subsequently slays the decedent which is rendered void by operation of law,
• a gift in favor of someone who subsequently divorced the decedent which is rendered void by operation of law,
• unintentionally failing to provide for a child living at the time of death which results in an implied in law gift to that child,
• partial invalidity for failing to make adequate provision for a surviving spouse, or
• full or partial invalidity for failing to honor a valid contract or court order to make a will with specific provisions.