Having Your Will Witnessed

The rules for are harsh and unforgiving - if your Will is not properly witnessed it's not a valid Will.

How to have a Will witnessed

In order for you to properly sign your Will and have your Will witnessed:

1. you must sign the Will at the end in the presence of two witnesses who are present at the same time; and
2. each witness must sign the Will in your presence.

A witness should not be witnessed by any beneficiary (including alternate beneficiaries) or a spouse of any beneficiary. Although this act won't invalidate the Will, it will render any inheritance left to the beneficiary void (unless a court is satisfied that the witness did not exert any improper or undue influence upon the person making the Will).

Ideally, an affidavit of execution (an "AOE") should be prepared when the Will is signed. The AOE is signed by a witness and sworn in the presence of a lawyer or notary public. Although this does not have to be done when the Will is signed, it is required if your executor needs to apply to the court for a certificate of appointment of estate trustee. At this time, It may be difficult to locate one of your witnesses or they may have predeceased you. In such a case, an affidavit will need to be submitted to the court attesting to your signature.

Holographic Wills and other Wills that do not require a witness

It is worth mentioning that a holographic Will is a specific type of Will that can be signed without a witness. A holographic Will is a Will made entirely in your handwriting and which is signed by you. The downsides of holographic Wills are that there is usually a greater risk of errors or other issues where a person makes any Will themselves, without a lawyer or even a good online Will platform. There are also additional steps that are required to prove the person's handwriting when an application is made to a court for a certificate of appointment of estate trustee.

In Ontario, there are also additional circumstances where a Will can be made without a witness, such as special rules for the military when on active service and sailors while at sea.