A Will–also called a Last Will and Testament–is an important legal document that every adult needs to have. Your Will tells everyone how you want your estate distributed after you die and who you want to take care of your dependents.
Because Wills are as unique as the people they’re for, there aren’t a lot of boxes every Will needs to check off. However, there are a few must-haves and rules that apply to all Wills.
Signing and witnessing your Will are two very important steps—though on rare occasions, witnesses aren’t needed (but more on that later.) Another rule is that the testator (that’s you, the person making the Will) is a legal adult and of sound mind.
Whether you’re nineteen or ninety, whether your estate’s worth $5,000 or $5,000,000, these rules are the foundation of Will-making in Ontario.
After you finish writing your Will, you need to sign and witness it. Witnesses are the people who confirm that you signed your Will.
Ontario’s laws require you to have two witnesses present when you sign your Will. But who can act as your two witnesses? Should one of the witnesses or both of them be lawyers or notaries? Can anyone be a witness for a Will signing in Ontario?
It turns out there aren’t a lot of restrictions on who your witnesses can be. They just need to be adults who aren’t:
- Beneficiaries named in your Will
- The spouse or partner of any beneficiaries
- Anyone else who has something to gain from you signing your Will (like the child of a beneficiary)
If any of these people act as your witness, they could lose their rights to any assets you left them.
We also recommend you don’t use your executor(s) or guardian(s) as witnesses.
Aside from these limits, almost any adult can be your witness including family members, close friends, even work colleagues!
You may have heard that some Wills are legally binding even without any witnesses. Technically, this is true! Some provinces (including Ontario) do recognize non-witnessed Wills. The only caveat is that the Will has to be written entirely by hand.
Handwritten wills are called holograph Wills. While they might sound neat, a lot can go wrong with holograph Wills and we don’t recommend them.
Unless you find yourself pinned underneath a tractor as Cecil George Harris did in 1948, or in a similarly dire situation, a witnessed Will is the way to go.
Ontario laws don’t require you to notarize your Will to make it valid. You also don’t need a notary public or lawyer to witness your Will.
Having said that, it’s a good idea to ask at least one of the two witnesses to sign a document (called an affidavit of execution) that confirms they witnessed the signing. This affidavit must be sworn in front of a commissioner or notary public to be valid.
It doesn’t take much to make a Will valid in Canada. All you have to do is make sure it’s printed and in a physical form, dated, signed, and witnessed by two witnesses.
That said, there are a few requirements that you and your two witnesses must meet in order to follow the laws around Will-making.
There aren’t many requirements the testator has to meet to write a Will in Ontario. You don’t have to have a certain amount of money in your estate or a certain number of dependents under your care.
To write a legal and valid Will, you just have to be the legal age to write a Will in your province and be of sound mind.
The legal age to write a Will differs depending on where you live in the country. In the province of Ontario, you can write a Will as soon as you turn 18 years old. There are exceptions made if you’re legally emancipated, legally married, or serve in the military.
The legal age to write a Will varies across Canada.
In 2003, the Ontario Court of Appeal decided that it isn’t enough just to communicate your wishes to make a valid Will. A person must be of sound mind as well.
Being of sound mind means you’re mentally able to make a Will and can grasp the nature and effect of your Will, including things like:
- The extent of the estate you’re giving away
- The nature of the claims someone might make if you exclude them from your Will
It’s pretty rare a Will is contested based on the testator not being of sound mind, but it’s still a possibility.
As mentioned above, your two witnesses must be adults. Your witnesses also can’t be beneficiaries of your Will. In other words, your two witnesses can’t have any interest in you signing your Last Will and Testament.
Your two witnesses must be in the room with you when you sign your Will. (Although, for a limited time due to the COVID-19 pandemic, this has changed to allow online witnessing.) After they see you sign your Will, they must sign it themselves as witnesses. We recommend your witnesses initial each page as well.
Many people make their Powers of Attorney (POAs) at the same time they make their Wills.
POAs are legal documents that allow you to choose who you want to make decisions for you in case you’re not able to. For example, if someone falls into a coma, whoever they named in their Powers of Attorney can step in on their behalf to make decisions about their health and finances. This is different from the role of an executor, who carries out your wishes after you die. The people named in your POAs are called ‘attorneys’ (even though they don’t have to be lawyers.)
Two of the most common Powers of Attorneys (POAs) are:
- POA for Property (POA-P): This document authorizes someone to make decisions about your financial affairs. This includes managing your bank accounts, debts, and even your real estate properties. There are two types of POA-Ps: continuing POA-Ps act indefinitely and non-continuing POA-Ps act for a specific amount of time.
- POA for Personal Care (POA-PC): This document authorizes someone to make decisions about your healthcare and other personal affairs if you can’t.
The person you name in your POA-PC needs to meet a few requirements:
- Must be at least 16 years old (this could change if you live in another province)
- Can’t be someone you pay for healthcare services (unless they’re your spouse or relative)
- Can’t be someone who provides you with social, housing, or support services (unless they’re your spouse or relative)
For a POA-P in Ontario, the criteria is a bit different. The person you name must be:
- At least 18 years old (Note: Legal age varies by province)
- Mentally capable when you first appoint them
The people named in your POAs can (but don’t have to) be the same person as your executor.
Now that we know the basics of making Wills and POAs, let’s turn to the actual costs of getting them done.
There are three ways to get a Will and POAs made: write them yourself, hire a lawyer to write them for you, or use an online service.
This is, of course, the cheapest way to write a Will and POAs. If you have a computer and a printer (or even a pen and paper), there’s nothing stopping you from writing a Will all by yourself. And since you don’t need to pay a lawyer or notary public to witness any signings, you can make your Will and POAs for practically no cost at all.
However, there are many pitfalls of writing your Will without any help.
Without a lawyer or online service to guide you, it’s easy to include either too much or too little detail.
Other common mistakes people make when taking a DIY approach to Wills is leaving gifts and money to pets, including funeral instructions in your Will, or forgetting to include important things like naming guardians and executors.
There are generally two kinds of fee structures that lawyers charge. Some lawyers charge a flat fee that could be hundreds, or even thousands, of dollars. Other lawyers charge for their services by the hour—and this is where the numbers can really add up.
The average cost of hiring a Wills and estate planning lawyer with 6-10 years of experience is about $280 per hour. In an established law firm in Toronto, lawyers routinely charge upwards of $500 per hour!
The fees lawyers charge can be off-putting for many people. And the truth is, most people don’t have to go to a lawyer to make a Will. However, there are some situations where you’ll need to see an estate planning lawyer for legal advice. For example, if you’ve had multiple marriages, are in a complicated tax situation, or want to cut someone out of your Will.
If you ask a lawyer to do your POAs as well, you can expect to pay upwards of $300.
For many of us, the high cost of hiring a lawyer keeps us from writing a Will and POAs altogether. But, on the other hand, if we write them ourselves we risk making mistakes, like accidentally promising to give more than we have.
Writing a Will and POAs with an online service can be a good middle-ground. Services, like Epilogue, charge a flat fee much lower than what a lawyer would charge. But less expensive doesn’t mean less comprehensive. A good online estate planning solution includes all the basic elements of a Will to help you properly take care of your loved ones.
Another feature most online services offer is the ability to log in any time to update your Will for free. As you move through life, it's inevitable your circumstances will change—like when you buy a house, have a child, get a pet, get married (or divorced). Each time you move through a new chapter of your life, you'll need to update your Will and online software makes these updates much easier than having to see a lawyer.
In the end, it’s up to you to choose how you want to do your estate planning. Whether it’s DIY, with a lawyer, or using an online service. Whichever method you choose, the important thing is to have a Will and POAs in place and stored somewhere safe.