Can Anyone Be A Witness For A Will in Canada?
Signing and witnessing your Will are two very important steps to make your Will a legally binding document. It’s important that the people you choose to witness your Will are legally able to do so.
Who can witness a Will?
After you finish writing your Will, you need to sign it with two witnesses present. Witnesses are the people who confirm that you signed your Will.
Most provincial 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? Let's find out.
It turns out there aren’t a lot of restrictions on who your witnesses can be. Your two witnesses just need to be adults who aren’t:
Beneficiaries of 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/personal representative or guardian as witnesses.
Aside from these limits, almost any adult can be your witness including: family members, close friends, even work colleagues!
Do all Wills have to be witnessed?
You may have heard that some Wills can be legally binding even without any witnesses.
Technically, this is true! Some provinces (including Ontario) do recognize Wills without witnessing. The only caveat is that the Will has to be written entirely in the Will-makers handwriting.
Handwritten wills are called holograph Wills. While they might sound neat, a lot can go wrong with using holograph Wills and we don’t recommend them.
Do Wills have to be notarized?
In Canada, you don’t have to get your Will notarized to make it valid. You also don’t need a notary public or lawyer to act as a witness to your Will.
Having said that, in some provinces it can be a good idea to have one of the witnesses complete an affidavit. In Ontario, one witness can sign a document (called an affidavit of execution) that confirms they were there witnessing your signing. This affidavit must be sworn in front of a commissioner or notary public to be valid. This affidavit will be submitted to the court along with the Will after the Will-maker has passed away.
A Will must be printed, signed, and witnessed for it to be valid in almost all provinces in Canada
It doesn’t take much to make a Will valid in Canada. In almost all provinces, all you have to do is make sure it’s printed and in a physical form, dated, signed by the Will-maker, and witnessed by two witnesses.
In almost all provinces in Canada, the Will-maker and the witnesses must meet in person when signing the document.
The laws that allow for the electronic signing of Wills are currently only available in British Columbia.
What requirements do you (the testator) have to meet to write a Will in Canada?
There aren’t many requirements the testator has to meet to write a Will in Canada. You don’t have to have a certain amount of money in the bank or have a certain number of kids.
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
The legal age to write a Will differs depending on where you live in the country. In the provinces of Ontario and Alberta, you can write a Will as soon as you turn 18 years old. But in B.C. you can legally make a Will at the ripe ol’ age of 16! There are exceptions made if you’re legally emancipated, legally married, or serve in the military. We should include the chart that has all provinces here.
What does ‘of sound mind’ mean?
Being of sound mind means you’re mentally capable of making a Will. This means is that you understand 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.
What requirements do your witnesses have to meet?
As mentioned above, each witness must be an adult. Your witnesses also shouldn't be beneficiaries of your Will, meaning they can’t have any interest in you signing your Will.
In almost all provinces, each witness must be physically in the room with you when you sign your Will. After they see you sign your Will, they must sign it themselves as witnesses. We recommend you and your witnesses initial each page as well.
*During the COVID-19 pandemic, certain provinces have enacted temporary measures to relax the definition of “in the presence of”.
Different ways to make a Will in Canada?
Most people think you need to see a lawyer to make a Will, but this simply isn’t the case.
There are three principal ways to complete your Will: write it yourself, hire a lawyer to write it for you, or use an online service.
Do-it-yourself Wills
This is, of course, the cheapest way to write a Will. If you have a pen and a piece of paper, there’s nothing stopping you from writing a Will all by yourself (other than the fact that you probably wouldn’t know where to start).
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.
Getting it done by a lawyer
The most traditional way of completing your Will is to do it with a lawyer. Seeing a lawyer mitigates the risk that your Will contains any mistakes or inaccuracies. But the cost of getting it done can be significant. If you ask a lawyer to do your POAs as well, you can expect to pay anywhere from a few hundred to a few thousand dollars.
Seeing a lawyer is recommended if your Will is going to have some complexity. For example, if you’ve had multiple marriages, are in a complicated tax situation, or want to exclude an immediate family member from your Will.
However, most Canadians are looking for relatively basic estate planning, and for them, an online service could be a good fit.
Using an online service
For many of us, the high cost of hiring a lawyer keeps us from writing a Will altogether. But, on the other hand, if we write them ourselves we risk making mistakes, or not accounting for everything.
Writing a Will with an online service can be a good fit for people with basic estate planning needs. Services, like Epilogue, charge a flat fee that is usually 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.
Epilogue
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, the important thing is you complete these important legal documents. However you do it, just make sure your Will is legally binding and you follow the steps to get it properly witnessed.
