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I want to write a will. What do I need to know?

I want to write a will. What do I need to know?
April 23, 2020

In light of the COVID-19 situation, you might be thinking of making a will. A will is a legal document that says who gets your property after you die.

What you can put in your will

When you make a will you decide things like who:

  • is the person who will carry out the directions in your will, called your estate trustee
  • are the people and organizations you want to leave your property to, called your beneficiaries
  • will care for your children who under the age of 18

Who can make a will

You can make a will if you’re:

  • at least 18 years old, but you can be younger if you’re legally married, a member of the Canadian forces, or a sailor, and
  • mentally capable, which means you understand what you are doing, what property you have, and if there are people who are financially dependent on you

How to make a will

There are three ways to make a will:

1. Write a holograph will. This must be written completely in your own handwriting. It can’t be partly typed and partly written. It should state:

  • your full name
  • that this is your "last will and testament"
  • who you name as your estate trustee
  • what your wishes are

You don't need any witnesses. But you must sign it at the very end. And it's a good idea to put a date on it.

2. Buy a will kit. Make sure the kit is based on the law of Ontario. If you use a will kit:

  • The will must be dated.
  • You must sign the will in front of 2 witnesses.
  • Each witness must also sign the will in front of you and the other witness.
  • One of the witnesses should sign an affidavit of execution that says you signed the will in front of both of the witnesses, who also signed the will.

3. Hire a lawyer to write your will. This will cost more but the lawyer will make sure that your will follows all the rules.

Virtual witnessing

Because of COVID-19, it can be difficult to have witnesses physically present when you sign your will.

The government made an emergency order on April 7, 2020 and April 22, 2020, that lets witnesses be “present” virtually.

For this to apply:

  • You must use audio-visual technology that lets you and your 2 witnesses see, hear, and speak to each other at the same time.
  • One of the witnesses must be a lawyer or paralegal licensed by the Law Society of Ontario.
  • Everyone signs an identical copy of the will at the same time.
  • The audio-video session can be recorded.

The will is made up of all these copies.

The law firm Hull & Hull created a checklist to help you make sure you’re following the rules about using audio-visual technology. Thanks to Hull & Hull for letting us link to this.  

If you die without a will

Ontario law has rules about who gets the property in your estate if you die without a will or don’t make a valid will. These are called the intestacy rules. Under these rules, people who you thought would get your property may get less or more than you wanted them to get. Or, they may get nothing.

For example, the intestacy rules say only a legally married spouse and biological and adopted children have a right to your property. The intestacy rules do not give anything to a common-law partner, or to stepchildren you haven't legally adopted.

For more information about wills, visit Steps to Justice.

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