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Formality, Storage, Execution of Will – Will DIY 6/7

This article provides a brief overview of will signing, storage, and execution after the testator’s death.

A formal will must be signed at the end by the testator and witnessed by at least two people.

If the testator is illiterate or physically unable to sign, they may mark an “X” to indicate their signature, showing their intent to adopt the document as their will.

ss.4.(2)(a)(b)(c) of SLRA have provided alternative formalities for the will to be signed and witnessed, but 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.

Attention:

  • Under ss.12(1)(3) of SLRA, witnesses cannot be beneficiaries or the spouses of beneficiaries, or the bequest to them will be void.
    • On the other hand, the court can uphold the gift if it’s proven there was no undue influence by the beneficiary or their spouse.
  • Note it is only the gift to that witness (also beneficiary) is void, the rest of the will clauses are still good.

An affidavit of execution should be taken from one of the witnesses at the time of signing or shortly thereafter. This helps avoid complications if the witnesses are later unavailable due to death, incapacity, or being unreachable.

There are two common scenarios that lead to a holograph will: the first is in an emergency situation, where the testator is close to passing away but wants to quickly write down their wishes for the distribution of their estate. The second is when the testator is unfamiliar with computers or printers and prefers to handwrite their will.

It is important to note that a holograph will requires no witnesses or formal will signing formalities. However, the signature must still appear at the physical end of the document.

Here is an example, which may seem unusual but is entirely plausible, regarding the validity of a holograph will:

A testator creates an Excel spreadsheet listing all their assets and which beneficiaries should receive each item. He prints out the spreadsheet and then handwrites a will stating, “For the distribution of my assets, see my Excel spreadsheet.”

This situation creates complications because Canadian case law is clear that if a will lacks the required witnessing formalities, only the handwritten portion can be admitted to probate as a holograph will. This means the handwritten portion must, on its own (without any reference to or interpretation from the pre-printed sections), clearly reflect the testator’s intent for asset distribution.

The probate process for a holograph will (see the “Duties of Executor” section below) is generally more complex than for a formal printed will. Therefore, it is recommended that the executor seek legal assistance.

A testator can only have ONE original will, and must store it properly.

In order for a will to be probated in Ontario, the original will must be filed with the Court. This means a copy of the original will, or even a notarial copy, cannot be used in its place without a court order.

A testator must be aware that, if the original will cannot be found many years later after the testator dies, the Will shall be presumed to have been destroyed. Therefore the “intestacy rule” kicks in unless there is sufficient evidence to prove otherwise.

What is Probate?

Probate is the legal process which is followed after your death, during which your Will is legally approved by the courts under provincial legislation. It also refers to the required documentation, as set out by provincial legislation and confirmed by the courts, and includes the legal confirmation of the appointment of the Executor.

Not all Wills have to be probated. It depends on various factors, such as the complexity of the estate, the amount and nature of assets, the number and nature of beneficiaries, etc. However, in practice, most estates end up going through the probate process.

It is encouraged to have the Will probated, as without this legal confirmation process, many people could become concerned that the Will is invalid, or possibly signed under duress, or that there may be a more recent Will. 

Executor’s Checklist

  1. Locate and Read the Will – The first obligation of the Executor is to locate the original of the most recent Will of the deceased. Hopefully, the testator has informed the Executor where the Will and other important papers are located. If not, the Executor will have to search all likely places for a valid Will. If the Will is kept in a safety deposit box, the Executor will have to take a key, the death certificate and personal identification to the bank where the box is located in order to access the box. The box can be forced open if the Executor does not have a key. In this case, the bank will usually draw up an inventory of the contents, and the Will should be released, if the Executor can demonstrate that they are indeed the person given this responsibility within the Will.
  2. The Executor must then apply for the Grant of Letters Probate from the Probate Court. This will grant the Executor the legal right to administer the estate.
  3. The Executor should apply for the Death Certificate of the testator, which can usually be obtained from the Funeral Home irector. This usually takes one to two weeks to receive.
  4. The Executor has the right to determine how to dispose of the deceasedʻs body. Any funeral wishes expressed by the deceased are not legally binding, although in practical terms, personal wishes are usually respected.
  5. The deceased’s assets are frozen until the Grant of Letters Probate is received, which formally acknowledges that the Executor has the legal authority to administer the estate. However, any property held jointly between a married couple can be passed automatically in its entirety to the surviving spouse, upon presentation of the death certificate.
  6. The Executor must notify everybody who has an interest in the estate, and what, if any, is their entitlement descritbed in the Will. If the Will is challenged, or the authority of the Executor is challenged, then the Executor may have to provide documentary evidence which shows that they have complied with any legal requirements.
  7. A list of assets and liabilities must be drawn up, incuding their value at the date of death. This list must be incuded in a Disclosure Statement, which must be submitted together with the application for the Grant of LettersProbate.
  8. The Executor must secure all assets and  take them into his or her possession.
  9. All prospective creditors must be given an opportunity to stake a claim on the estate. The Executor must advertise for anybody who may have a claim against the estate. Creditors with a valid claim can recover their debt at any time, even after the estate has been distributed to the beneficiaries.
  10. The next step is to apply to probate the Will so that the assets can be dealt with legally. At this point, the executor will likely need the assistance of a lawyer.
  11. The Executor is responsible for filing taxes on behalf of the deceased, including income taxes and capital gains taxes.
  12. Once the Executor has legal authority to distribute the estate, they must pay all debts and expenses, including funeral expenses and all taxes. It may be worth obtaining a Tax Clearance Certificate from Canada Revenue Agency (CRA), certifying that all taxes have been paid, prior to distributing the estate, at this point, the executor will likely need the assistance of an Accountant. 
  13. Once all debts have been paid, the estate can be distributed to the beneficiaries, starting with specific bequests to individuals. If the Wil provides for the setting up of Trusts, the Executor is responsible for the arrangements. Once all specific bequests have been distributed, the residue is distributed.
  14. The executor is accountable to the beneficiaries, so it is essential to maintain complete, accurate, and detailed written records when handling debts, taxes, and the distribution of the estate.

Final Important Note

Although this series focuses on DIY will-making, if your personal circumstances, family situation, or asset structure are complex, we recommend seeking assistance from a licensed solicitor specializing in wills and estates.