Can You Make a Handwritten Will in Ontario?

Many people ask whether they can simply write out their wishes by hand and have a valid will. In Ontario, the answer is yes in some cases, but a valid handwritten will is not always a safe one. Here is what the law says and where the problems tend to appear.

The basic rule: a will must be in writing

Under section 3 of the Succession Law Reform Act, a will is valid only when it is in writing. Section 4 sets out the usual formalities for a typed or printed will: it must be signed at its end by the person making it, who must sign or acknowledge the signature in front of two or more witnesses present at the same time, and two or more of the witnesses must also sign in the person's presence.

The handwritten (holograph) exception

Section 6 gives an exception. A person may make a valid will wholly by their own handwriting and signature, without formality, and without the presence, attestation or signature of a witness. This is called a holograph will. The key word is wholly: if parts are typed, printed or written by someone else, the safe assumption is that the holograph exception does not apply.

Other rules that still apply

• Age. A will made by someone under 18 is generally not valid unless an exception applies, such as being married or a member of the regular forces (section 8).
• Mental capacity. You must understand what you own, who your family is and what you are doing.
• Signature position. Section 7 explains where the signature must go so it clearly applies to the will. Anything written after the signature may not take effect.
• No pressure. A will made under undue influence can be challenged.

Why handwritten wills often cause problems

• Unclear wording. "My house goes to my children" does not say whether it is equal shares, what happens if a child dies first, or what happens with a mortgage.
• No executor or no backup. If the person named cannot act, the family may face delays.
• Missing alternates. If a beneficiary dies before you, the gift may fail.
• Disputes over handwriting. After death, someone may question whether the writing and signature are really yours.
• Missing documents. A handwritten will does not replace powers of attorney for property and personal care, which you need while you are alive. See our guide to power of attorney vs. executor.
• Not dating or updating. Later notes added to an old will can contradict it.

What if a will was not signed properly?

Section 21.1 allows the Superior Court of Justice, on application, to order that a document that was not properly executed is as valid and effective as a will if the court is satisfied it sets out the person's testamentary intentions. This is a safety net, not a plan: it means going to court. Section 21.1 is also subject to the Electronic Commerce Act, 2000, which means electronic wills are not covered.

Witnesses and gifts

If you use witnesses for a typed will, remember that under section 12 a gift to a witness, or to the witness's spouse, is void in most cases. Do not use a beneficiary or their spouse as a witness. See our guide on whether you need a lawyer to make a will and the risks of online will kits.

Signing by video

If getting to an office is the problem, section 4(3) allows witnessing by audio-visual technology if at least one witness is a licensed lawyer or paralegal and the signing is contemporaneous. See our page on signing a will by video in Ontario.

Changing or revoking a handwritten will

Under section 15 of the Succession Law Reform Act, a will is revoked only by another will made in accordance with the Act, by a writing declaring an intention to revoke that is made in accordance with the Act, or by burning, tearing or otherwise destroying it by the testator, or by someone in their presence and by their direction, with the intention of revoking it. Crossing out words or writing notes on the page is not safe. Under section 18, an alteration made after the will was signed has no effect unless it is made in accordance with the Act, which for a holograph will means the testator's signature at or near the alteration.

Where to sign

Section 7 says the signature should be placed at, after, following or beside the end of the will so that it is apparent that the testator intended it to give effect to the writing. A signature in the wrong place, or text added after the signature, can cause disputes. A will that is not signed at the end, or has gifts below the signature, can create arguments about what is valid.

Common mistakes in handwritten wills

• Mixing typed and handwritten text.
• Leaving out a date, an executor, or an alternate executor.
• Not saying what happens if a beneficiary dies first.
• Assuming jointly held property or accounts with named beneficiaries will follow the will.
• Not mentioning minor children's guardians or trusts.
• Not telling anyone where the will is kept.

Keeping it safe and findable

Keep the original in a safe, accessible place and tell your executor where it is. If the original cannot be found, a court may need to decide what happened to it. When a will is needed after death, the court may also ask for evidence that a holograph will is in the testator's handwriting, which can mean extra steps for your family.

Talk to us

A handwritten will can be a stopgap in an emergency, but we recommend a will prepared with a lawyer. We prepare wills, Islamic wills and powers of attorney in English, Urdu, Hindi and Punjabi. See our fees and wills page, download the free checklist, or call (289) 652-0529.

DISCLAIMER: This article is general information about Ontario and federal law, not legal advice, and no lawyer-client relationship is created by reading it. Laws change and every situation is different, so speak with a lawyer about yours.