Witnessing a Will in Ontario

Witnessing a Will in Ontario: Legal Requirements, Common Practice, and Mistakes to Avoid

A Guide for Ontario Clients

Making a will is one of the most important steps in estate planning. However, even a carefully drafted will can create significant problems if it is not properly signed and witnessed.

In Ontario, the legal requirements for witnessing a will are governed primarily by the Succession Law Reform Act (SLRA). In addition to these statutory requirements, lawyers and notaries commonly follow certain best practices to help reduce future probate difficulties and challenges to the validity of the will.

This article explains:

Who can and cannot witness a will in Ontario
The legal requirements for valid execution
Common mistakes made by testators and witnesses
The role of a notary public during a will signing
The purpose of an Affidavit of Execution
Practical tips to help avoid probate complications
 
What Does Ontario Law Require?

For most formal wills in Ontario, the testator (the person making the will) must:

Sign the will at the end of the document, or acknowledge their signature;
Do so in the presence of two witnesses who are present at the same time; and
Have those witnesses sign the will in the presence of the testator.
These requirements exist to help ensure that the will genuinely reflects the wishes of the testator and to reduce the risk of fraud or undue influence.

Who Can Be a Witness to a Will?

Generally, a witness should be:

• An adult with capacity;
• Independent from the estate;
• Not receiving a gift under the will;
• Able to observe the signing process;
• Available in the future if evidence about the execution of the will becomes necessary.

Although Ontario law does not require witnesses to be lawyers or notaries, independent witnesses are strongly recommended.

Who Should Not Be a Witness?

• Beneficiaries

One of the most common mistakes occurs when a beneficiary signs as a witness.

Section 12 of the Succession Law Reform Act provides that where a witness (or the witness's spouse) receives a beneficial gift under the will, the gift may be void. Importantly, the entire will does not automatically become invalid, but the gift itself may fail.

Example
If a daughter is left $25,000 in her mother's will and also signs as a witness, that gift could be challenged and potentially declared void.

Spouses of Beneficiaries
The same concern applies to the spouse of a beneficiary.

• A witness whose spouse receives a gift under the will may create complications under section 12 of the SLRA.
• Individuals with a Financial Interest in the Estate
  Even where the legislation does not expressly prohibit a witness, using someone who has a financial interest in the estate may increase the likelihood of disputes or allegations of undue influence.

For this reason, lawyers and notaries generally recommend using completely independent witnesses whenever possible.

Can an Executor Be a Witness?
Yes.

Section 14 of the Succession Law Reform Act provides that a person is not disqualified from proving the execution of a will merely because they are named as executor.

However, many practitioners still prefer to use independent witnesses where possible.

Can a Creditor Be a Witness?
Yes.

Section 13 of the SLRA confirms that a creditor is not automatically disqualified from acting as a witness solely because the estate owes them money.

Does a Will Need to Be Notarized in Ontario?
No.

A common misconception is that a will must be notarized to be valid.

Ontario law does not require a will to be notarized. A will becomes legally valid when it is properly executed in accordance with the requirements of the Succession Law Reform Act.

Notarization is not what makes a will valid.

The Role of a Notary Public During a Will Signing

Although a will itself is generally not notarized, notaries and lawyers commonly assist clients with the execution process.

Depending on the circumstances, a notary public may:

• Verify the identity of the testator;
• Verify the identity of the witnesses;
• Ensure that the signing procedure is conducted correctly;
• Confirm that all signatures are completed in the proper places;
• Maintain professional records of the appointment;
• Administer and commission an Affidavit of Execution;
• Prepare certified true copies of the executed will when requested.
  

These services do not replace legal advice and do not determine the validity of the will, but they often help create a clear record of the signing process.

Identity Verification: A Common Best Practice
Although the Succession Law Reform Act does not specifically require government-issued identification before signing a will, lawyers and notaries commonly verify identity as a matter of professional practice.

Identity verification helps establish:

• Who signed the document;
• That the correct individuals acted as witnesses;
• That the execution process was properly conducted.
• This documentation can become valuable years later if questions arise concerning the validity of the will.

What Is an Affidavit of Execution?

One of the most important documents prepared after a will signing is the Affidavit of Execution.

After the will is signed, one of the witnesses may swear an affidavit confirming:

• Their identity;
• That they witnessed the signing of the will;
• That the testator signed or acknowledged the signature in their presence;
• That the witnessing requirements were followed.
  The affidavit is then commissioned by a lawyer, notary public, or commissioner authorized to administer oaths.

 
Why Is an Affidavit of Execution Important?
The affidavit does not make the will valid.

However, it is commonly used during estate administration because it provides evidence that the will was properly executed.

Without an affidavit, an estate trustee may later need to locate the witnesses and obtain evidence regarding the signing process. This can become difficult many years after the will was signed.

For this reason, lawyers and notaries frequently arrange for the Affidavit of Execution to be completed immediately following the signing appointment.

 
Certified True Copies of a Will
Clients occasionally request certified true copies of their signed will.

A certified true copy is simply a copy that has been compared to the original and certified as a true reproduction.

It is important to understand that a certified copy is not a replacement for the original will. The original signed will should be stored securely because the original document is often required during estate administration.

Common Mistakes Made by Testators

• Using Family Members as Witnesses
• Many people ask a spouse, child, or beneficiary to witness their will. This can create unnecessary legal complications and may affect gifts under the will.
•  Not Having Both Witnesses Present
  The statutory requirements generally require both witnesses to be present at the same time when the testator signs or acknowledges the will.

Making Changes After Signing
Handwritten changes made after execution can create uncertainty and litigation.

Before making alterations to a signed will, legal advice should be obtained.

Losing the Original Will
A photocopy is not the same as the original will.

Clients should store the original in a secure location and ensure that their executor knows where it is located.

Common Mistakes Made by Witnesses

• Not Actually Observing the Signature
  A witness should genuinely observe the signing process and not simply sign where instructed.
•  Signing at a Different Time
  Witnesses should not sign the document later unless the execution process complies with applicable legal requirements.
•  Failing to Keep Records
  Years may pass before a will is reviewed after death. Professional notes and records can assist in proving proper execution if questions arise later.

Remote Witnessing in Ontario
Ontario law permits remote witnessing of wills in certain circumstances using audio-visual communication technology, provided statutory requirements are satisfied. One of the witnesses must be a Law Society licensee.

Clients considering remote execution should ensure that all legal requirements are followed carefully.

Final Thoughts
The validity of a will depends not only on its contents but also on how it is executed.

By using independent witnesses, following the requirements of the Succession Law Reform Act, and preserving evidence of proper execution through an Affidavit of Execution, testators can help reduce future challenges and probate complications.

While a will does not need to be notarized to be valid in Ontario, professional assistance from a lawyer or notary can help ensure that the signing process is properly documented and that important supporting documents are completed at the same time.

Case Law: Estate of Madge Linton, 2019 ONSC 7054 — The Presumption of Due Execution

A useful Ontario Superior Court of Justice decision illustrating the importance of proper will execution is Estate of Madge Linton, 2019 ONSC 7054. The case demonstrates that the law requires a will to be properly witnessed, but it also recognizes that a properly executed will does not necessarily become invalid simply because the witnesses later have no recollection of the signing.

The facts
Madge Olive Linton died in 2018. After her death, her husband located a will dated November 25, 2014. The will contained the signatures of the testator and two attesting witnesses.

The difficulty arose because the two witnesses would not provide affidavits of execution. When required to attend court, both witnesses acknowledged that the signatures appearing beside their names were theirs, but neither could remember witnessing Madge sign the will.

The estate therefore had to bring an application to prove the will in solemn form. The court had to determine whether the statutory requirements for execution had been satisfied.

The statutory requirements
Justice Woodley reviewed section 4 of Ontario's Succession Law Reform Act, which provides that, subject to the statutory exceptions:

• the will must be signed at its end by the testator;
• the testator must make or acknowledge the signature in the presence of two or more attesting witnesses who are present at the same time; and
  two or more of those witnesses must subscribe the will in the presence of the testator.
  The Court also noted that, where witnesses are required, no particular form of attestation is necessary.

The estate trustee bears the burden of proving due execution, on a balance of probabilities.

The importance of the attestation clause
The 2014 will contained a conventional attestation clause stating, in substance, that the testator had signed and declared the document to be her last will in the presence of both witnesses, who were present together and who then signed as witnesses in the presence of the testator and one another.

Although neither witness could remember the signing, both acknowledged that the signatures appearing on the will were theirs. Their addresses and occupations were also correctly recorded.

The Court therefore had documentary evidence consistent with a properly executed will.

The presumption of due execution
The most important aspect of Linton is the Court's treatment of the witnesses' lack of memory.

Justice Woodley held that the fact that witnesses cannot remember witnessing the execution of a will is not, by itself, fatal to the validity of the will.

Where a will appears on its face to have been properly executed, a presumption of due execution arises unless there is evidence sufficient to rebut that presumption.

The Court concluded that the witnesses' lack of recollection did not establish that the required witnessing procedure had not occurred. Their inability to remember the event years later was not an alternative account of what actually happened.

The Court relied on the earlier Ontario Court of Appeal decision Re Laxer, 1963 CanLII 153 (ON CA), emphasizing the practical reason for the presumption: the validity of a person's testamentary wishes should not ordinarily depend upon the accuracy of a witness's memory many years after the signing.

Justice Woodley ultimately found that the presumption of due execution applied and ordered that Madge Linton's 2014 will be proven in solemn form.

Why this case matters for will witnessing in Ontario
Linton is significant for several reasons.

First, it confirms the importance of complying with the formal requirements in section 4 of the Succession Law Reform Act. The case should not be read as saying that witnesses are unnecessary. The opposite is true: the will in question was required to satisfy the statutory witnessing requirements.

Second, the case demonstrates the evidentiary importance of a properly prepared attestation clause. Although an attestation clause is not itself a substitute for the statutory requirements, a conventional clause recording that the testator signed or acknowledged the will in the presence of two witnesses can provide important evidence concerning proper execution.

Third, the decision demonstrates that a witness's later lack of memory does not automatically invalidate a will. The Court distinguished between evidence that the statutory requirements were not followed and a witness simply being unable to remember an event that occurred years earlier.

Fourth, the case illustrates why careful execution procedures remain important in professional practice. If the testator, both witnesses, and the person supervising the execution properly follow the statutory requirements and the document contains an appropriate attestation clause, there may be substantially better evidence of due execution if questions arise after the testator's death.

Practical significance for notaries and lawyers
For lawyers and notaries involved in the execution of wills, Linton provides a useful practical lesson: the execution ceremony should be treated as an important evidentiary event, not merely as the act of obtaining signatures.

The safest practice is to ensure that the testator and both witnesses are together when the required signing or acknowledgment occurs, that the witnesses sign in the testator's presence, and that the execution is accurately documented.

The case also helps explain why practitioners generally take care to record the identity of the witnesses and to use a clear attestation clause. If a dispute arises years later, the original will and the circumstances recorded at the time of execution may become important evidence.

At the same time, Linton should not be interpreted as permitting informal execution of wills. The Court's conclusion rested on its finding that the will appeared properly executed and that the evidence did not rebut the presumption of due execution. It was not a decision dispensing with the statutory requirement for two witnesses.

A particularly important distinction
The case is also useful in explaining the difference between execution of a will and proving execution after death.

The two witnesses were required at the time the will was executed because Ontario law requires two attesting witnesses for an ordinary formal will. Their later involvement is an evidentiary matter. If they are unavailable, unwilling, or unable to remember the signing, the court may have to determine whether the available evidence establishes due execution.

Thus, the witness requirement exists at the time of execution; the witness's later affidavit or testimony is evidence used to establish what occurred.

That distinction is particularly important in professional will practice.

Conclusion
Estate of Madge Linton, 2019 ONSC 7054 is therefore a strong Ontario authority for the proposition that a will that appears to have been properly executed benefits from a presumption of due execution, and that a witness's failure to remember the signing years later does not, without more, defeat the will.

The case reinforces the central importance of the two-witness requirement under Ontario's Succession Law Reform Act, while also demonstrating the evidentiary protection provided by careful and properly documented execution.

For practitioners, the lesson is straightforward: use two competent attesting witnesses, ensure the statutory signing requirements are actually followed, and document the execution carefully. Proper execution at the outset can substantially reduce evidentiary difficulties when the will must later be proved.

Disclaimer
This article provides general information about Ontario wills and witnessing requirements. It is not legal advice. Individuals should consult a lawyer regarding the drafting, interpretation, or legal effect of a will.

Sources
Succession Law Reform Act, R.S.O. 1990, c. S.26, ss. 4, 11, 12, 13 and 14.
Ontario Regulation 164/20 respecting remote witnessing requirements.
Law Society of Ontario guidance regarding notarial and witnessing practices.