Wills are a powerful tool that people can use to ensure that their families and loved ones are cared for after they pass away. The purpose of a Will is to convey the Testator's wishes regarding the distribution of their properties and assets.

Although not mandatory, Wills are often drafted by a lawyer. For a Will to be validly executed, section 4(2) of the Succession Law Reform Act, R.S.O., 1990, c. S.26 ("SLRA") states that a Will must be signed at its end by the Testator (or some other person in the Testator's presence by the Testator's direction) in the presence of two or more attesting witnesses who will also subscribe the Will at the same time. More specifically, in order for the Will to be deemed valid in Ontario, the SLRA requires the two witnesses to be present when the Testator signs and dates the Will.

Due to the COVID-19 pandemic, several provinces have implemented virtual witnessing of legal documents. Effective August 1, 2020, O. Reg. 431/20 was enacted to permit remote commissioning in Ontario. In order for Wills to be witnessed remotely and in counterpart, at least one of the witnesses must be a lawyer licensed by the Law Society of Ontario. "Remote witnessing" means that the signing of Wills can be completed with audio-visual communication technology. "In counterpart" means the witnesses can sign their respective copies of the Will. Furthermore, all the signed copies must be kept together in order to finalize the Will. Wet signatures on paper documents are still required in Ontario.

Such Wills are known as a "Formal Will". A Formal Will is the best way to convey the individual's wishes and intentions regarding their Estate.

Requirements for Formal Wills

  • The Will must be created by an individual of sound mind, and over the age of majority in Ontario (age of 18);
  • The Will must be made by the Testator – no one else can make it on their behalf;
  • The Will must be signed in the "presence" of two valid witnesses;
    • A witness should not be a beneficiary or the spouse or parent of any beneficiary;
  • The witnesses must sign the last page of the Will together with the Testator;
  • The Will must be signed in "wet ink" (a pen, seal, or other identifying mark) and stored as a physical copy.

The second kind of Will recognized in Ontario is known as a Holographic Will. According to section 6 of the SLRA, a Testator may make a valid Will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

Requirements for Holographic Wills

  • The Holographic Will must wholly be the handwriting of the Testator;
  • The Holographic Will must be signed by the testator at the end of the document;
  • The Holographic Will must contain a "deliberate or fixed and final expression of intention as to the [Testator's] disposal of property upon death";
  • Any gifts 'below' the signature are NOT be valid;
  • Holographic Wills do not require witnesses;
  • Holographic Wills do not require a date (although this can be very helpful).

Changes to Existing Wills

A Codicil is a legal document that is used to make minor modifications to an already existing Last Will and Testament. A Codicil has the same signing requirements as a Formal Will. In order to create a Holographic codicil, the entire amending document must be handwritten, with the date and signatory at the end of the document.

Codicils are typically used for the purposes of changing the name of an executor, guardian, or beneficiary, or adding or deleting specific bequests. It is generally not recommended to have more than one Codicil to your Will as multiple documents may lead to a misinterpretation of the Testator's intentions.

The Case of Lacroix Estate, 2021 ONSC 2919

The Testator, Rebecca Lacroix, instructed solicitor Margaret Opatovsky to prepare her Will while she was hospitalised with late-stage cancer in 2020. Due to COVID-19 restrictions, Opatovsky was unable to visit Lacroix in the hospital to have the Will properly executed. Consequently, she delivered the typewritten Will to the hospital and advised Lacroix to create a Holographic Will incorporating the draft Will.

Accordingly, Lacroix stated in a handwritten note:

"I, Rebecca Stephanie Lacroix, declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes."

She attached this note to the draft Will and initialed each page.

When the Estate Trustee named in the draft Will applied to the Court for a Certificate of Appointment, the Court denied the Application.

The Court examined sections 6 and 7 of the SLRA and found that the Holographic Will satisfied the requirements under the Act to be valid. However, the Holograph Will alone was not a valid testamentary document, as it did not independently dispose of any property.

Moreover, the Court noted that a Holographic Will cannot incorporate by reference a typewritten document, and the Holographic Will must be wholly in the deceased's handwriting.

Recent Legislative Amendments

The Accelerating Access to Justice Act is a large omnibus Bill that amends various Ontario statutes and regulations, including the SLRA.

As of January 1, 2022, Schedule 9 amends the SLRA by adding section 21.1 to give the Superior Court of Justice authority to, on application, make an order validating and rendering fully effective a document or writing that was not properly executed or made under the SLRA if the Court is satisfied that the document or writing sets out the testamentary intentions of a deceased, or an intention of a deceased to revoke, alter or revive a Will. Electronic Wills form an exception to this provision.

Previously, Ontario adhered to a strict compliance regime such that the Court had no discretion in determining a document as constituting a valid Will if it did not fully comply with the requirements prescribed by the SLRA. Now, under section 21.1, improperly signed Wills are treated with more flexibility such that the Superior Court is authorized, on application, to determine a non-compliant Will valid.

It is important to note that one can only make an application under section 21.1 where the date of death of the Testator is on or after the effective date, being January 1, 2022.


Recent amendments to the SLRA show that the law governing Wills and testamentary documents in Ontario is gradually but steadily evolving. However, Ontario legislators should take a cue from other provinces, such as British Columbia, where digital signing of Wills by Testators is now legal. Courts should also work to clarify the law governing the inclusion of typewritten documents in Holographic Wills.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.