A Handwritten Will, a Kitchen-Table Signing, a Beneficiary Who Witnessed It: Which Ontario Wills Still Pass the House

Written for the parent holding the pen: the four questions a court will put to your will after you’re gone, and what you can settle today so the paper answers them for you.

I’m Arthur Zhao, a broker with AZ Real Estate Partners at Bay Street Group Inc., Brokerage. Picture where your plan stands this week: the will is drafted, the house goes to your two children in equal shares, and the signing is pencilled in for Sunday dinner — your son and his wife are coming over anyway, and they can sign as the witnesses. Nothing about that evening feels like a legal event. But one day a judge may be asked to look at what you put on the table that night, and the judge will not be able to ask you what you meant. The paper has to answer for you. The way I read Ontario’s Succession Law Reform Act, that review comes down to four questions, and every one of them can be settled now, while you are the one holding the pen. (In the Sunday plan above, one of the four already has the wrong answer. Question 3 explains which.)

Question 1: Is there a will on paper at all?

According to the Succession Law Reform Act, s. 3, a will is valid only when it is in writing. Whatever you have said to your children over the years about who gets the house, the spoken words are not a will. (Whether a spoken promise can be enforced some other way, as a contract, is a separate question under a different statute; our article on verbal promises to leave someone a home deals with it.)

Writing is only the entry ticket. The Act then offers two different routes to a valid written will, and which route you are on decides what Question 2 will ask:

• A formal will: typed, printed or handwritten, and relying on witnesses (s. 4).
• A holograph will: made wholly in your own handwriting and signed by you, with no witnesses needed (s. 6).

One thing to do now: decide which of the two you are making. The word in s. 6 is “wholly”, so a document whose text is printed or typed, even with your signature in ink at the bottom, is not on the holograph route. Treat anything that is not handwritten from top to bottom as a formal will that needs witnesses.

Question 2: How were the signature and the witnessing done?

For a formal will, s. 4(2) sets three requirements, and all three have to be met:

• (a) the will is signed at its end by you, or by someone else in your presence and at your direction;
• (b) you make or acknowledge that signature in the presence of two or more witnesses present at the same time;
• (c) at least two of those witnesses sign the will in your presence.

A kitchen table is a perfectly good place for this. The section is about who is present and when, not where. No special wording above the witnesses’ signatures is required either: s. 4(6) says that where witnesses are required, no form of attestation is necessary.

Where your signature sits. Section 7(1) is forgiving about placement — at, after, under, beside or opposite the end of the will all work, as long as it is apparent on the face of the document that you meant the signature to give effect to what you wrote. It is not forgiving about what comes afterwards. Under s. 7(3), your signature does not give effect to anything written underneath it, or to anything inserted after you signed.

If you chose the holograph route, s. 6 asks only that the will be wholly in your own handwriting and signed: no witnesses, no formality. The section says nothing about a date.

One thing to do now: sign last, at the end, with nothing below your name except the witnesses’ signatures, and have both witnesses watch you sign (or acknowledge your signature) before either of them signs.

If the witnesses can’t be in the room: in person vs. on a video call

Question 3: Who was in the room, and do they get anything?

Section 12(1) is the rule that trips the Sunday-dinner plan. If a witness, or the witness’s spouse at the time, receives a beneficial gift under the will, that gift is void, but only as it concerns the witness, the spouse, or someone claiming through either of them. The rest of the will survives, and the witness can still give evidence about how it was signed. Section 12(2) applies the same rule to a person who signs the will on your behalf.

So in the opening scenario, your son’s wife signing as a witness puts your son’s half of the house at risk, even though he never picked up the pen; with him signing as the second witness, his gift is caught on his own account as well. Your daughter’s half is untouched.

The Act offers two ways back:

• s. 12(4): the gift is not void if the will was witnessed by at least two people who are outside s. 12(1), or if no witnesses were needed at all, as with a holograph will.
• s. 12(3): the Superior Court of Justice can save the gift if it is satisfied that neither the witness nor the spouse exercised improper or undue influence on you. That is decided by a judge, after your death, on the evidence available then.

One thing to do now: pick two witnesses who receive nothing under the will and whose spouses receive nothing either. If a family member wants to sign as well, have them sign in addition to those two, not instead of them.

Question 4: If the answers aren’t clean, can a court still give the will effect?

According to s. 21.1(1) of the Succession Law Reform Act, in force since January 1, 2022, the Superior Court of Justice may, on application, order that a document that was not properly executed under the Act is as valid and fully effective as if it had been, if the court is satisfied that the document sets out the deceased’s testamentary intentions (or an intention to revoke, alter or revive a will). Two limits sit in the same section:

• Timing, s. 21.1(3): the power applies only where the person died on or after the day it came into force, January 1, 2022.
• No electronic wills, s. 21.1(2): the power is subject to s. 31 of the Electronic Commerce Act, 2000, and s. 31(1) puts “wills and codicils” first on the list of documents that Act does not apply to. A will that exists only in electronic form does not get this rescue.

The section gives the court a power to exercise; it does not tell anyone in advance how a particular document will fare, and this article does not try to predict that.

One thing to do now: make sure the version you actually intend exists as signed paper, not only as a file on a computer or phone, and keep the original somewhere your executor can find it.

What the four questions don’t settle

A will that passes all four questions is a valid will. That is not the same as a will that controls the house. If the home is held jointly with someone, or it is a matrimonial home and you leave a surviving spouse, other rules can reach it before the will does — our articles on how marriage now interacts with an existing will and on how title is held cover that ground.

This article is general information about the statute, not legal advice. If your family has a blended structure, property outside Ontario, a beneficiary you expect to be challenged, or any question about capacity, have a wills lawyer draft the will and supervise the signing.