How to create a private will in Ontario?

In Canada, as a federal state, there are many different legal systems that coexist. This applies, among other things, to legal acts governing Canadian inheritance law. While certain general principles apply throughout Canada, greater practical significance is attributed to the laws of individual provinces.

In today’s article, we will present 5 key formal requirements related to creating a private will in the province of Ontario. According to the latest statistical data, there is a large Polish community in Ontario. Ontario is also the most populous province in Canada. It is home to Ottawa, which is the capital of the country.

For the purposes of this article, let’s clarify that a private will is a will created without the involvement of a notary at a convenient time and place for the testator (the person creating the will). This form allows avoiding many formalities, although potential legal defects in the will must still be considered.

I – Testamentary Capacity

A person creating a will in Ontario must be of legal age. Legal age in the province of Ontario is reached upon turning 18 years old. Therefore, the requirements in this regard are not different from those adopted in the Polish Civil Code.

Another equally important condition within this group involves the mental capacity of the testator to create a will. According to Canadian inheritance law, a valid private will can only be created by a person who understands the testamentary declaration they are making and the consequences associated with it. The conditions of legal age and mental capacity must be met together.

II – Independence in Creating the Will

The essence of a will, of course, lies in the testator making binding testamentary dispositions for the event of their death. Therefore, a will must be fundamentally written by the testator themselves. Creating a will on behalf of someone else is not permissible.

A power of attorney granted by the testator to a third party for the purpose of creating a will will not have legal effect. In most cases, legal actions related to creating a will have a strictly personal character, requiring the involvement of the interested party themselves.

III – Witnessing by at Least Two Witnesses

Another requirement is the presence of at least two witnesses during the process of creating the will. The witnesses must also be aware of the role they are playing, which practically means that the testator should inform them that the document they are creating is their will.

It’s worth emphasizing that not every person can act as a witness when creating a will. For example, a beneficiary mentioned by the testator in the will cannot act as a witness. Such requirements aim particularly at protecting the person creating the will by ensuring the highest level of freedom when making testamentary dispositions.

IV – Handwritten Signatures of Witnesses

The role of witnesses in creating a private will is not limited to their physical presence during its drafting. Specifically, the witnesses must also sign the document constituting the will. The witnesses’ signatures serve as a form of evidence confirming their involvement in the entire procedure. The absence of witnesses’ signatures on the will constitutes a significant legal defect resulting in the invalidity of the will.

V – Testator’s Signature

Given that a will represents the testator’s statement of intention, a necessary requirement is for the testator to provide their handwritten signature on their will. Just as with the signatures of witnesses, the testator’s signature must be legible and include their first and last name. Adhering to these requirements facilitates the identification of individuals signing the will.

Inheritance in Canada – Legal Assistance

Unfortunately, in the vast majority of cases, individuals pass away without a valid will. However, this does not automatically mean that the estate left by the deceased will pass to the ownership of the state or local authorities, as statutory inheritance is still in play. Nevertheless, it’s worthwhile to solidify one’s intentions, especially since the testator knows best how they want their assets to be handled in the event of their death.

To create a legally valid private will, it’s a good idea to seek the assistance of a competent lawyer who can provide the testator with all necessary explanations and assess the validity of the provisions contained in the will.

Our firm, Lawyer in Europe, has extensive experience in international inheritance matters. International inheritance law is a key aspect of our firm’s activities. Our lawyers are more than willing to assist their clients, providing invaluable support and protecting their interests. If you require any assistance with matters related to inheritance from abroad, feel free to contact our lawyers. We guarantee legal services of the highest quality!