This Lunch and Learn will answer questions including: What is a Will? What are the various kinds of Wills? How do I ensure a Will is validly executed and legally compliant? What is probate, why is it needed, and how is it obtained?

A Will is an instrument by which a person disposes of property upon death.^1.  A Will must be in writing and signed by the testator in the presence of two witnesses. A Will that is entirely handwritten by a testator, called a “Holograph Will,” does not need to be witnessed, but it still needs to be signed.

On January 1, 2022, Ontario law changed. Up until that point, the accepted view was that Ontario law required full compliance with the formalities of execution for a Will to be valid. With the introduction of s. 21.1 of the Succession Law Reform Act, the judiciary was provided with the discretion to validate a Will that did not strictly comply with the formalities of execution. What that means exactly will be determined and judges deal with the individual cases that will undoubtedly arise.

The authority to deal with estate assets flows from the testamentary document, and not from the grant of a Certificate of Appointment of Estate Trustee (often called “Probate”). Obtaining Probate is a practical requirement where third parties like government agencies or financial institutions are involved who require the Certificate of Appointment to ensure that they are dealing with the valid last Will and testament. Obtaining Probate requires the payment of a tax that is scaled relative to the value of the estate.

Topics include:

• Documenting your Retainer
• The Nature of a Will
• Understanding the Unique Jurisdiction of the Court in Probate Matters
• Presumption of Validity Upon “Due Execution” – Section 21.1 of the SLRA
  • Comparison with Other Provinces
  • Treatment of Holographic Wills
  • Formalities of Execution and Section 4 of the SLRA
  • Court-Ordered Validity and Substantial Compliance