Forms of a Will

Forms of a will

There are two main forms of a will: a witnessed will and a holograph will. Both forms serve the same function — allowing you to name who will receive your property when you pass away, while also naming a personal representative to ensure your wishes are carried out. The key difference between the two lies in how they are put into writing, and what is required to make each one legally valid.

Witnessed Wills

A witnessed will is the most common type of will. It is sometimes called a "formal" will. "Witnessed" means it is signed in front of witnesses. Any will that is not entirely handwritten by the person making it must be "witnessed" in order to be valid. Most witnessed wills are typed or prepared on a computer, or are pre-printed "fill-in-the-blank" forms. A witnessed will must be signed by the person making it in the presence of two witnesses, and the witnesses must also sign their names at the end of the will. You and your two witnesses should also initial every page of the will. After signing, the witnesses sign a document called an Affidavit of Execution. In this document, the witnesses swear that they saw you sign the will, and that they have no reason to believe you lacked the capacity to make a will.

In Ontario, wills and powers of attorney may be witnessed remotely, meaning video technology may be used for the witnesses to observe the person making the will sign the document, as long as one of the witnesses is a member of the Law Society of Ontario (a lawyer or a Licensed Paralegal).

An important point is that the remaining witness (the one who is not a member of the Law Society) must not be someone who benefits from a gift under the will. They must also not be the spouse of anyone who benefits under your will (a person with a beneficial interest).

Holograph Wills

A holograph will is less formal than a witnessed will. The key requirements of a holograph will are that it must be written entirely in the testator's own handwriting, and it must be signed and dated. Unlike a witnessed will, a holograph will does not require witnesses or an affidavit, and it can be prepared entirely by the person making it on their own. While this may be the simplest option for making a will, it is generally not a good idea for most people. These wills will be invalid if they are unclear or missing important legal information.

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