Notarizing Wills in Canada - When Is It Required?

In Canada, the legalities involved in creating and validating a will are often misunderstood, especially regarding the role of notarization.

This article aims to clarify the actual legal requirements for wills in Canada, with a focus on the varying conditions across provinces such as Ontario and Quebec.

For anyone drafting or updating a will, understanding these key points is vital to ensure its legal integrity and the effective distribution of your estate.

The short answer: No, a will isn’t required to be notarized to be considered legal in Canada.

A common misconception – regardless of which Canadian province you’re from – is that a will can only be valid if it’s notarized, meaning signed and witnessed by a notary.

This widespread assumption that a will must be reviewed by a legal professional, although often helpful, can lead to unnecessary legal expenses and redundant steps – and in some cases, even prevent people from choosing to make a will at all.

Although legal professionals can help draft a clear will and prevent potential conflicts, a will is not required to be notarized to be considered valid.

Holographic wills, or wills signed in the presence of witnesses, are both equally as valid as a notarized will.

So long as your specific province’s requirements are met and the will is written clearly and error-free, there should be no issue with whether or not a non-notarized will is found to be valid.

Legal Validity of Wills without Notarization

In Canada, a will is valid if it meets certain criteria, whether or not a notary has reviewed it. Because of this, it’s important to remember that a will is not required to be notarized to be recognized as legally valid.

The necessary criteria include confirming that the person writing it is of the age of majority and mental capacity, the presence of witnesses during the signing, and other details depending on the specifics of the person writing it and the relevant provincial regulations. As long as the base conditions are met, a will should stand as a legally binding document.

While creating a notarized will ensures its legal validity, it is still possible for Canadians to create a legally recognized will without needing to consult a notary, especially for simpler estates. The exact criteria of what makes a legally binding will can vary by province, but the standard key elements are typically that:

• The will must be made for the person writing it.
• The will must be written by someone of sound mind.
• The will must be written by someone over the age of majority.
• If the will is typed instead of handwritten, it must be signed before two witnesses, who then also sign to validate the testator’s signature. These witnesses must not be beneficiaries, or stand to gain anything from signing the will.
• The will should include a clear plan for all assets, free of contradictions or inaccuracies.

Meeting these base criteria will ensure that even if a will is not notarized, it should still meet all the basic legal requirements to be recognized as valid. However, it’s important to note that each province has specific requirements that must be met before a will is validated.

For example, some provinces allow the will to be written by a minor, but only under certain conditions. Another example is that British Columbia is the only province to allow a will to be drafted, stored and signed entirely online. Be sure to check your province’s official standards.

DIY and Online Will Writing Options

When first creating a will, it might seem like drafting your own will is the best choice. After all, creating your own will is not only free, but you know best how your estate should be managed. But in the modern age of technology, it’s now possible to draft your will with the help of online services, which are quickly becoming all but essential.

Many online services are easy to use and legally recognized. The main benefit is that they offer a guided process to create your will and ensure all legal standards of your province are met. Even better, their convenience and cost-effective price – especially when compared to costly legal services – make them the first choice for an increasing number of people looking to ensure that their will is reliable and secure.

Writing your will yourself may save on initial costs, but doing so runs the risk of missing critical errors, and may not be detailed enough to handle a more complex estate. Instead, online services are generally cheaper and more convenient than hiring in-person legal professionals, and can be used from home while offering the same guidance to remove any risk of errors.

Enhancing the Credibility of Wills through Notarization

Although not mandatory, consulting a notary when creating a will is always worth the peace of mind it offers. Plus, notarizing not just the will, but also the affidavit of execution, is a step that enhances the document’s credibility through legal authentication, ensuring that your will is seen as valid and that every legal detail is reviewed and met.

This added measure allows a will to be exempt from the probate process in many Canadian provinces. Doing so saves families their time and money by providing clear evidence of the document’s authenticity and avoiding this lengthy legal process.

When to Consider Notarization for Your Will

Because notarizing a will offers additional validation, this can prove advantageous in certain situations. Testators may want to consider notarizing their will if any of the following apply:

• The testator is worried about any potential disputes over the specifics of the will or estate assets.
• The estate is particularly complex or significant assets.
• The area of residence presents unique or challenging legal specifics to the will drafting or probate process.
• The testator is unsure about how to navigate estate laws and is looking for peace of mind and professional guidance.

Because these situations can easily escalate into legal disputes or other challenges that are arduous to resolve, notarizing a will is a valuable measure to avoid the probate process and prevent such challenges from occurring. This will ensure the smoothest possible execution of the will, and leave loved ones with their rightful assets guaranteed.

Specific Requirements in Ontario

The requirements for a valid will vary from province to province. In Ontario, the criteria for a will to be considered valid include:

The testator, or person writing the will, must be doing so for themselves, be of sound mind, and be of legal age, which in Ontario is 18 years old.

The will must be signed in the presence of two valid witnesses.

The chosen witnesses must sign the document alongside the testator.

If the will is made and stored online, it must also be signed and stored as a physical document.

In all provinces except British Columbia where it’s not required, an affidavit of execution also helps the estate settlement process. The affidavit of execution is an easy-to-create document that’s stored with the will and is used to validate the signatures made by the witnesses who oversaw the signing of the will. It verifies the identity of the testator, that they were of sound mind, and signing under no duress when the will was signed.

In Ontario, where witness signatures are mandatory for a will to be recognized, the affidavit of execution is stored with the will to ensure that the witness signatures and will are both seen as valid, especially if the will goes through the probate process.

While the affidavit of execution does not become mandatory unless the will undergoes the probate process, having the affidavit notarized helps contribute to a streamlined probate process. It also gives the liquidator one less task to worry about completing, since when this document is lacking, the liquidator would need to locate the chosen witnesses, or at least prove they’ve made an effort to do so.

The same logic applies if you notarize your holographic will. Having the will reviewed by a legal professional may be optional, but it is still guaranteed to help prevent any overlooked legal details. Notarizing both the will and the affidavit of execution at the same time is the easiest way to way to ensure a simplified probate process.

Notarial Wills in Quebec

In Quebec, notarial wills are a kind of will that is used much more frequently. This is because they’re exempt from the probate process, having already been reviewed by a notary or other legal professional.

This exemption streamlines the estate settlement process, allowing families one less matter to concern themselves with during an already difficult time. Notarial wills aren’t necessarily more legally binding than ones that aren’t, but they are still easier to prove if it becomes necessary.

Despite the higher initial cost, drafting a notarial will save families time, money, and effort, assuring their maintained popularity.

Final Thoughts: Understanding and Simplifying Canadian Will Notarization

While notarization of a will is not a legal necessity across Canada, it offers significant advantages in terms of legal credibility and simplification of the estate settlement process.

The legal landscape, marked by provincial variations, presents different requirements and options, such as holographic wills and online will services, catering to diverse needs.

For Canadians drafting a will, the key takeaway is the importance of adhering to provincial guidelines to ensure the will’s legal integrity. Whether opting for notarization or not, the paramount goal remains the clear and conflict-free distribution of one’s estate, underlining the importance of informed and thoughtful estate planning.

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