Making a Will and Obtaining Probate

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?

Making a Will and Obtaining Probate

This program is eligible for CPD hours required of Lawyers.
This program is eligible for CPD hours required of Lawyers.
Making a Will and Obtaining Probate

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

 

  1. Albert H. Oosterhoff et al., Oosterhoff on Wills, 8th ed. (Toronto: Thomson Reuters, 2016) at p. 107.

Discussion Materials

Main Paper

Session Recording

In the Media

This article was published by Law360 Canada, part of Lexis Nexis Canada Inc. on March 9, 2023.

Presenters

Counsel, Wagner Sidlofsky LLP

David Freedman

Associate, Wagner Sidlofsky LLP

Mukta Batra

Gold Sponsors

b'nai brith canada
Wagner Sidlofsky LLP
Toronto Dominion Bank

Silver Sponsors

Bank of Montreal - Trust and Estate Services
Gold Sponsors
b'nai brith canada
Wagner Sidlofsky LLP
Toronto Dominion Bank
Silver Sponsors
Bank of Montreal - Trust and Estate Services
David Freedman

C. David Freedman

Counsel, Wagner Sidlofsky LLP

David brings an approach to resolving his clients’ legal issues that is rooted in a deep understanding of the law but is very pragmatic. He is happy to work with clients on simple and complex matters and within the confines of a client’s resources.

Mukta Batra

Mukta Batra

Associate, Wagner Sidlofsky LLP

Mukta Batra is an associate at Wagner Sidlofsky LLP. Prior to joining the firm in 2022, Mukta worked in the legal department of a professional association of Ontario Educators. She has previously practiced Commercial Litigation in India and US Federal Law.