Updated: Aug 29, 2019
1. What happens to the will after it is created? Who keeps the will?
There should only be one original of a will and the original must be kept safely so it can be used when applying for probate.
You can opt for the original to be:
Kept by yourself - you should keep it in a safe or something else similarly secure.
Left with Us - ask yourself if leaving the will with us will make things easier or more difficult for those who need to locate the original will when applying for probate.
Deposited with the Court - you can deposit an original will for $20 to be kept by the Courts in Ontario.
2. What if I have assets outside of Ontario?
If you have assets outside of Ontario, we suggest that you create multiple wills, one for each different jurisdiction. For example, if you have assets in Ontario and in Scotland, we would advise you to have two separate wills and perhaps two separate executors.
You need to make sure that each will is enforceable in the jurisdiction where it applies and to make sure there are no contradictions or overlap (i.e. Ontario assets aren't mistakenly placed in the will governing assets in Australia; making sure that one will doesn't revoke the other(s)).
3. What happens if I destroy my will?
If a will is destroyed, it will be presumed to have been revoked by you.
4. What happens if I lose the original will? Do I have to make a new one?
If you lose the original will, it will have been presumed that you, the testator, destroyed it and thereby, revoked it. You will have to create a new one to replace the original will if the original will cannot be found. Before creating a new one, you may want to advertise (especially with local lawyers) to try to locate it.
5. When do I need to have multiple wills?
As addressed above, you may need multiple wills if you have assets in jurisdictions other than Ontario.
You may also want to have multiple wills to reduce probate taxes. Some assets such as shares in a private company, do not require probate. Such assets should be grouped together in a will that addresses assets that don't require probate, separately from a second will that addresses assets requiring probate.
6. Can I just write my will by hand?
It is possible to create a valid will in your own handwriting (this is called a holograph will). Date it and sign it.
Note that there is no need for witnessing for such wills.
7. What are the differences between typewritten (formal) and handwritten (holograph) wills?
The main difference is the need for witnessing.
As set out by s. 4(1) of the Succession Law Reform Act ("SLRA"), typewritten or formal wills MUST be signed by the testator and witnessed by two witnesses who:
Were present when the testator signed; and
Are not the executor, or a beneficiary, or the spouse of any executor or beneficiary.
Handwritten alterations to an otherwise typewritten will are governed by section 18 of the SLRA. These alterations must be signed by the testator and witnessed by two witnesses (who witness the alteration).
On the other hand, a holographic will MUST be written in the testator's own handwriting. Partially handwritten wills such as fill-in-the-blank forms do not count as being written in the testator's own handwriting. Further, typewritten documents cannot be incorporated or referenced into holographic wills. If you do make reference or include typewritten portions into a holographic will, the typewritten portions will not be admitted into the probate process and only the handwritten portions will be evaluated on their own as a will. Therefore, if you are using a fill-in-the-blank form or will kit, think about whether the handwritten portions you write can stand alone as a will.
A holographic will must be signed by the testator at the end of the document. Everything that comes before the signature will thus be admitted into probate. Anything (including instructions or notes) following the signature will not take effect.
Furthermore, case law in Ontario has established that a holographic will MUST have been written as a fixed and final disposition, not merely some kind of expression of their wishes. The onus to show this falls upon the party alleging the document to be testamentary.
Alterations to holographic wills only require the signature of the testator. If there is no signature or initials next to the alteration, we will need to look into when the alteration was made - if it was made at the time of execution of the will, it will be considered valid. However, if it was made after the execution of the will, the alteration would be considered invalid.
8. Is it better to have a formal or holographic will?
It is up to you - however, consider that while holographic wills are easier and cheaper to create, they also carry risks. Although Ontario courts accept them as valid as long as they fit into the requirements as discussed above in Question 7, creating a holographic will without the input of a lawyer may lead to the problem of ambiguity.
Namely, ambiguity in terms of wording as well as wishes. What is clear to you may not be clear to others, and you may accidentally leave out certain clauses, such as the residuary clause. Ambiguity may lead to the court invalidating certain conditions containing ambiguous wording.
Oftentimes, the cost of interpreting ambiguous clauses and sentences in holographic wills by a lawyer and a court is more expensive than paying for a lawyer to draft a formal will.
If you are interested in learning about how WDL LAW can help you with your will, please contact us at email@example.com.
9. What happens during probate?
An affidavit of execution would be needed and the original will should be stamped at the back of the last page and identified as an exhibit to the affidavit of execution.
The affidavit should be sworn by one of the witnesses and should be sworn at around the time the will is signed by the testator. Otherwise, it would be hard to track down the witnesses.
10. Who should I select as an executor?
Being an executor is a difficult job that requires the person appointed as executor to have good knowledge of the following:
He or she should be someone you trust and who lives reasonably close to you, so s/he can more easily deal with your assets. Furthermore, you should appoint someone who can be reasonably expected to survive you.
Please read this blog post for more information on selecting an executor for your will.
Disclaimer: This blog post is for general information purposes only and is NOT intended to be relied upon for legal advice, or to be construed as legal advice. Please consult with us directly through email (firstname.lastname@example.org) for legal advice about your specific situation.
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