FORMAL REQUIREMENTS OF A WILL (June 20, 2020)

In order for a will to be valid, it has to comply with three main of the requirements of the Succession Law Reform Act. While wills that do not comply with all of these requirements, may be approved by the court as a valid expression of the wishes of the testator, they usually require an application to be filed with the court, which can become very costly. Usually, when an error in the formal requirements is found, the testator is already gone and cannot clarify their wishes. For this reason strict application of the requirements is paramount.

 

  1. The first and most important requirement is the will is in writing. An audio or video recorded will is not valid. A handwritten will, called a holographic will, can sometimes be approved, but the safest bet is to draf the will on a computer word processor and print it out;
  2. The next requirement is that the will is signed by the testator (the person making the will). Usually, the testator will sign the will with the signature they most commonly use. In extreme cases allowances are made when they are of sound mind, but for certain reasons they cannot sign their name. While not strictly required, there are some standard practises which attorneys use to make sure that the will is found to be valid at the relevant time;
    • Initial on each page. This ensures that there can be no suspicion of replacement pages. However, if done, care must be taken to ensure that each page is indeed initialed;
    • Blue ink. Black ink is sometimes impossible to distinguish from a photo copied version of the will. Accordingly, it is best practise to execute the will with a blue pen;
    • Affidavit of Execution. Most lawyers will attach an affidavit of execution from one of the witnesses to the will. This witness will swear that they personally witnessed the said signature and should satisfy any doubt as to its authenticity.
  3. The final requirement is that the will must be witnessed by two individuals, neither of whom is a beneficiary or spouse of the testator. These witnesses must be over 18 and of sound mind, as at some point they may be required to sign an affidavit confirming that they witnessed the will. As previously mentioned, usually the affidavit swearing to such will be drafted and commissioned by the attorney who prepared the will.

The most important characteristic of your will is that it should stand up to scrutiny in a court of law, if so required. If you are interested in having a professionally drafted will, call Arkadiusz J. Empel at 416.479.8531 (x 101) to request a consultation.

Po Polsku (In Polish)

Arkadiusz J. Empel urodził się w Polsce, w Katowicach. Jest biegły w języku polskim i gotowy pomóc kliętkom w sprawach lokalnych oraz zagranicznych. Aby zasięgnąć pomoc oraz porade w języku polskim, prosze zadzwonić pod number 416.479.8531 (ext. 101).