With respect to signing a Will, a testator must sign his or her Will or direct some other person in the testator’s presence to sign the Will on his or her behalf at the very end of the Will. The testator should use his or her customary signature, notwithstanding that the testator’s full legal name is likely to be indicated at the outset of the Will. The SLRA contains a saving provision that addresses the situation where a Will is signed but not at the end of the Will. The saving provision only saves that portion of the Will that precedes the signature, however, and any disbursements or directions located beneath the signature will be of no force and effect.
With the exception of a holograph Will or a Will prepared by a member of the armed forces on active duty (more on these in a later blog entry), a testator must sign or acknowledge his or her signature in the presence of at least two witnesses. The witnesses must be present at the same time and must sign the Will in the presence of the testator. As well, the witnesses should not be a beneficiary under the Will or be the spouse of a beneficiary under the Will. The SLRA provides that if a beneficiary or his or her spouse is a witness to a Will then any gift to such beneficiary contained in the Will shall be void as it relates to such beneficiary, or his or her spouse, or any person claiming under either of them. Notwithstanding the foregoing, on application a court may allow such a voided gift if it is satisfied that the witness in question did not exercise any undue influence upon the testator. There is no prohibition on a trustee named in the Will or a creditor of the testator acting as a witness to the execution of the Will, provided that he or she is not also a beneficiary under the Will.
It is common practice in Ontario for the testator and each of the witnesses to initial the bottom right hand corner of each page of the Will (other than the last page of the Will, which is to be signed). Initialing each page is not a formal legal requirement but it helps to establish that the testator has seen each page and that no pages have been replaced.
Generally, a testator and the witnesses only signs one original copy of the Will. This is to avoid any danger that a presumption of revocation may apply if there are more than one original and all signed copies cannot be located at the time of the testator’s death. Any number of “true” copies of the Will can be prepared, however, provided that there is only one original. Very often, the original Will is held for safekeeping by the law firm that prepared the document. If a testator elects to retain the original Will, it is critical that it be kept in a secure, fire-proof location and that it be readily locatable in the event of the testator’s death.
An affidavit of execution of will in the prescribed form (Form 74.8 pursuant to the Courts of Justice Act) should be completed by one of the witnesses immediately after the Will has been executed. If a Certificate of Appointment of Estate Trustee With a Will is required, this affidavit must be submitted to the court along with the original Will at the time the application is made.
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