Does a Will Need to Be Notarized in Ontario?
Many people in Ontario believe their will must be notarized to be legally valid. This is a common misconception about estate planning in Canada.
Understanding what actually makes a will legal can save time, money, and unnecessary stress during an already difficult process.
A will does not need to be notarized to be legally valid in Ontario. The province has specific requirements for creating a valid will, but notarization is not one of them.
A properly signed and witnessed will can be completely legal without ever involving a notary public. However, notarization can still play a helpful role in certain situations.
This guide explains the real legal requirements for wills in Ontario and clarifies when notarization might be useful. It covers the role of notaries, the importance of affidavits of execution, and the steps involved if someone chooses to notarize their will.
The information helps both individuals and business owners make informed decisions about their estate planning needs.
Are Wills Required to Be Notarized in Ontario?
Wills in Ontario do not require notarization to be legally valid. The law sets out specific requirements for valid wills that focus on proper signing and witnessing.
Legal Validity of a Will in Ontario
A will in Ontario becomes legally valid when it meets several key requirements under provincial law. The testator must be at least 18 years old and of sound mind when creating the document.
The will must be signed by the testator in the presence of at least two witnesses who also sign the document. These witnesses cannot be beneficiaries of the will or spouses of beneficiaries.
If a beneficiary or their spouse acts as a witness, that person typically loses their inheritance under the will. The testator must sign the will voluntarily without any pressure or undue influence.
Ontario recognizes both formal typed wills and holographic wills. A holographic will is entirely handwritten and signed by the testator.
This type of will does not require witnesses to be valid. Notarization adds an extra layer of authentication but is not a legal requirement.
A properly signed and witnessed will has full legal effect without involving a notary public.
Common Misconceptions About Notarization
Many people believe a last will and testament must be notarized to be legal in Ontario. This misconception leads individuals to seek notarization services when they are not necessary for the will's validity.
The confusion often stems from mixing up notarization with the witnessing requirements. While two witnesses must be present when the testator signs the will, these witnesses do not need to be notaries public.
They simply need to be adults who are not beneficiaries. Another misunderstanding involves the affidavit of execution.
This document may need to be notarized for probate purposes, but it is separate from the will itself. The affidavit is signed by one of the witnesses after the testator's death to confirm the will was properly executed.
While helpful during probate, this affidavit is not required for the will to be legally valid when created.
Overview of Notarial Wills in Other Provinces
Quebec operates under a different legal system that recognizes notarial wills. A notarial will in Quebec must be signed before a notary and one witness.
This type of will does not require probate, which can simplify estate administration. Other provinces like Ontario, British Columbia, and Alberta follow common law traditions.
These provinces do not have a formal category of notarial wills. The requirements for a valid will remain consistent across most common law provinces: proper signing and witnessing without mandatory notarization.
The distinction matters for individuals who move between provinces or own property in multiple locations. A will created in Ontario remains valid in other provinces as long as it meets the legal requirements of where it was made or where the testator lived.
Legal Requirements for a Valid Will in Ontario
A will in Ontario must meet specific legal standards to be considered valid and enforceable. These requirements focus on the testator's mental state, proper execution procedures, and appropriate witnessing.
Testator Capacity and Age Criteria
The person creating a will in Ontario must be at least 18 years old. This age requirement applies to most situations, though exceptions exist for married individuals or members of the armed forces.
Mental capacity is equally important when preparing wills and estate documents. The testator must understand what assets they own and how those assets will be distributed.
They need to comprehend the nature of making a will and the effect it will have after death. The testator must also recognize who might reasonably expect to benefit from their estate.
This includes understanding family relationships and obligations. If someone lacks this mental capacity due to illness, medication, or other factors, the will may be challenged and deemed invalid.
Signing the Will Properly
The testator must sign the will personally or direct someone else to sign on their behalf in their presence. This signature must appear at the end of the document to validate all preceding provisions.
Estate planning documents require voluntary execution without any undue influence or coercion. The testator must sign freely and understand what they are signing.
The signature should match the testator's usual signing style. If the testator cannot physically sign, they can direct another person to sign for them.
This must happen in the testator's presence and at their explicit direction.
Witness Qualifications and Role
At least two witnesses must be present when the testator signs the will in Ontario. These witnesses must then sign the document themselves in the testator's presence.
Witnesses cannot be beneficiaries named in the will or spouses of beneficiaries. If a beneficiary or their spouse acts as a witness, that person's inheritance may become void, though the rest of the will remains valid.
The witnesses must be adults who can confirm the testator's identity and mental capacity. They should understand their role in verifying the proper execution of the will.
Both witnesses should be present at the same time when the testator signs. Ontario law has introduced flexibility for remote witnessing under certain conditions with legal supervision.
What Is Notarization and the Role of a Notary Public?
Notarization is a formal process where an authorized official verifies identities and witnesses document signings. In Ontario, both notary publics and licensed lawyers can perform these services.
Definition of Notarization in Estate Planning
Notarization involves an authorized official confirming the identity of people signing documents and witnessing their signatures. The notary public examines identification to ensure the person signing is who they claim to be.
This process helps prevent fraud and ensures documents are signed willingly without pressure or false pretenses. In estate planning, notarization adds an extra layer of authentication to important documents.
The notary stamps or seals the document with an official mark after witnessing the signing. This seal shows that a qualified official verified the process.
The notary also administers oaths and affirmations when needed. They can certify that copies of documents are true copies of originals.
These services protect all parties involved by creating an official record of the signing.
Who Can Perform Notarization in Ontario
The government of Ontario authorizes specific people to act as notary publics under the Notaries Act. Licensed lawyers in good standing with the Law Society of Ontario can apply to become notary publics.
Paralegals licensed by the Law Society can also apply for this appointment. A notary public has all the powers of a commissioner for taking affidavits.
They can witness and certify document execution and attest that copies are true copies of originals. Anyone appointed as a notary public must comply with all requirements under the Notaries Act.
The appointment gets suspended automatically if the person stops being licensed or has their licence suspended. Remote or virtual notarization is not currently permitted in Ontario.
Notary Public Versus Licensed Lawyer
A notary public and a licensed lawyer serve different functions in document authentication. A notary public focuses on verifying identities and witnessing signatures.
Their role is limited to confirming the signing process follows proper procedures. A licensed lawyer can provide legal advice about documents and their contents.
They can explain legal implications and help clients understand what they are signing. When a lawyer acts as a notary public, they should not provide legal advice unless they are retained to do so.
Key differences include:
Scope: Notary publics only witness and verify; lawyers can advise on legal matters
Qualifications: All notary publics in Ontario must be licensed lawyers or paralegals
Fees: Only notary publics in certain fee-paying categories can charge for notary services
Legal advice: Lawyers can provide estate planning guidance beyond basic notarization
Both serve important roles in estate planning. A licensed lawyer offers broader services when someone needs guidance on their will or other estate documents.
When and Why Might a Will Be Notarized in Ontario?
While notarization is not required for a will to be legally valid in Ontario, it offers specific advantages that can strengthen the document and simplify future legal processes. Understanding when and why to notarize helps individuals make informed decisions about their estate planning.
Benefits of Notarizing a Will
A notarized will provides additional legal protection through professional verification. When a notary public confirms the identity of the person signing the will, it creates an official record that can prevent future disputes about authenticity.
Notarization adds credibility during probate. The probate process becomes smoother when a will includes professional verification, as courts have fewer questions about the document's validity.
This can reduce delays and legal challenges from family members who might contest the will. The process also confirms the testator signed voluntarily.
A notary public verifies that no one pressured or forced the person to create or sign the document. This protection becomes especially valuable if disputes arise about mental capacity or undue influence.
Professional verification offers peace of mind. Many people feel more confident knowing a licensed professional reviewed their will and confirmed they understood what they were signing.
Situations Where Notarization Is Recommended
Complex estates benefit significantly from notarization. When a person owns multiple properties, runs a business, or has substantial assets, the extra layer of verification helps protect against challenges during estate administration.
Handwritten wills should strongly consider notarization. These holographic wills, while legal in Ontario, face more scrutiny during probate.
A notary public can verify the handwriting and confirm the person wrote and signed the document willingly. Family conflicts make notarization valuable.
When a testator anticipates disagreements between beneficiaries or expects someone to contest the will, professional verification provides stronger evidence of the document's legitimacy. International assets create additional complexity.
Property or investments in other countries may require different standards of proof, and notarization can help satisfy those requirements.
Implications for Handwritten and Formal Wills
Formal typed wills and handwritten wills face different levels of scrutiny during probate. Handwritten wills often require additional proof of authenticity, making notarization particularly helpful for these documents.
A notary public cannot make an invalid will valid. The will must still meet Ontario's legal requirements, including proper witnessing by two independent people who are not beneficiaries.
Notarization adds verification but does not replace these fundamental requirements. Typed wills prepared by lawyers typically include an affidavit of execution.
This sworn statement from witnesses serves a similar purpose to notarization and can be completed after the will is signed. Some people choose both options for maximum protection.
The cost of notarization ranges from $50 to $250 in Ontario. This relatively modest expense can prevent significant legal complications and expenses during estate administration.
Affidavit of Execution and Its Importance
An affidavit of execution provides sworn proof that a will was properly signed and witnessed. While not required for a will to be valid in Ontario, this document plays a critical role in making the probate process faster and easier for executors.
Purpose and Contents of an Affidavit of Execution
An affidavit of execution is a sworn statement made by one or more witnesses who watched the will-maker sign their will. The document confirms specific details about how the signing took place.
The affidavit typically includes:
The witness's full name and address
Confirmation they saw the testator sign the will
The date and location of the signing
A statement that the testator appeared to understand what they were signing
Confirmation that the witness signed in the testator's presence
This sworn statement serves as legal proof that the will was executed according to Ontario law. The witness must state they believed the testator had the mental capacity to make a will at the time of signing.
Who Prepares and Notarizes the Affidavit
The witness who signed the will prepares the affidavit of execution.
A licensed lawyer, notary public, or commissioner of oaths must notarize the document before it becomes valid.
Notarization usually happens right after the will signing if a notary or commissioner is present.
If not, the witness can complete this step later by bringing the will to notary services.
During notarization, the commissioner marks the original will as an exhibit to the affidavit.
The witness must bring the actual will document so this step can be completed properly.
Role in the Probate Process
The affidavit of execution becomes essential during probate.
When an executor applies for a certificate of appointment of estate trustee, they must prove the will's signature is valid.
With an affidavit already prepared, the executor can file the probate application immediately.
Without it, they must track down witnesses who may have moved, forgotten the signing, or died.
This creates delays during an already difficult time.
The court may require original witnesses to appear in person if no affidavit exists.
This adds complications to the probate process and can extend the timeline for settling the estate.
Step-by-Step: The Notarization Process for Wills in Ontario
Wills in Ontario don't require notarization to be legally valid.
Many people choose to notarize supporting documents like affidavits of execution.
The process involves preparation, finding the right professional, and understanding the costs involved.
Preparing for Notarization
The testator needs to bring their completed will to the notarization appointment.
The document should be printed and ready for signing, but not signed beforehand.
Two witnesses must attend the appointment who are not beneficiaries in the will.
These witnesses cannot be people who receive anything from the estate or be the spouse of a beneficiary.
The testator should bring valid government-issued photo identification, such as a driver's licence or passport.
The notary public will verify the identity of all parties present.
All parties must be prepared to sign the documents in the presence of each other and the notary.
The signing must happen during the same appointment.
If someone is notarizing an affidavit of execution, the witness who saw the original will signing must attend.
Selecting the Right Notary or Lawyer
A notary public in Ontario can provide notary services for will-related documents.
Lawyers who are members of the Law Society of Ontario can also act as notaries.
Mobile notary services offer appointments at homes or offices for added convenience.
This option works well for people with mobility issues or busy schedules.
The professional should have experience with estate planning documents.
They need to understand Ontario's requirements for wills and related paperwork.
Understanding Associated Costs
Notarization fees in Ontario typically range from $50 to $150 per document.
The exact cost depends on the complexity of the document and the service provider.
Mobile notary services often charge additional travel fees.
These fees vary based on distance and time of day.
Some notaries charge flat rates while others bill hourly.
Affidavit of execution notarization usually costs less than full estate planning services.
Many notaries offer package deals for multiple documents signed during one appointment.
Key Considerations for Estate Planning in Ontario
Effective estate planning requires regular maintenance and secure storage of your documents.
These steps can prevent legal complications and ensure your wishes are properly executed.
Updating Your Will Regularly
Life changes require updates to your estate planning documents.
Marriage, divorce, the birth of children, or acquiring significant assets all necessitate revisions to your will.
The Law Society of Ontario recommends reviewing your will every three to five years at minimum.
Major life events that should trigger an immediate will review include:
Getting married or divorced
Birth or adoption of children
Death of a beneficiary or executor
Significant changes in asset value
Moving to a different province
Changes in tax laws affecting estates
Failing to update your will can lead to unintended consequences.
An outdated executor may no longer be available or suitable.
Asset distributions might not reflect your current wishes.
Beneficiaries listed in old wills may include people you no longer wish to include.
Business owners face additional considerations.
Changes in business structure, partnerships, or company valuation require updates to estate planning documents.
Professional legal advice helps ensure business succession plans align with current circumstances.
Ensuring Proper Document Storage
Storing your will and estate planning documents securely is critical for protecting your final wishes.
Your executor must be able to locate these documents quickly when needed.
Poor storage choices can delay probate or create legal disputes among beneficiaries.
The original will should be kept in a secure, fireproof location.
Options include:
A safety deposit box at your financial institution
A fireproof safe in your home
With your lawyer's office
At a trust company
Keep copies of your will separate from the original.
Provide your executor with information about where to find the original document.
Never store your will in a location only you can access, as this defeats the purpose of having an executor.
Inform trusted individuals about your document storage locations.
Your executor, lawyer, and a close family member should all know where to find your wills and estate planning documents.
This prevents unnecessary delays during an already difficult time.
Digital copies can serve as backups but cannot replace the original signed document.
Courts in Ontario require the original will for probate proceedings.
Consider maintaining both physical and digital records for comprehensive protection.
Conclusion
A will does not need to be notarized to be legally valid in Ontario.
The law requires the will to be in writing, signed by the testator, and witnessed by two people who are not beneficiaries.
While notarization is not mandatory, some people choose to prepare a self-proving will with a notarized affidavit of execution to make the probate process smoother.
Understanding these requirements helps ensure that estate plans meet legal standards and protect loved ones.
Proper estate planning goes beyond just having a valid will.
Reducing probate fees, minimizing taxes, and avoiding family disputes requires careful planning with the right legal guidance.
B.I.G. Probate Law Ontario helps families navigate wills, estate administration, and probate matters with confidence.
For questions about will requirements or estate planning, contact us at (289) 301-3338 or Info@probatelaw-ontario.ca.
Visit probatelawgroup.ca to learn more or book a free call to discuss specific needs with our experienced professionals who understand Ontario estate law.
Frequently Asked Questions
Many people have questions about notarizing wills in Ontario.
Understanding the legal requirements and the role of notarization helps people make informed decisions about their estate planning.
What happens if a will is not notarized in Ontario?
A will that is not notarized can still be completely valid in Ontario.
The province does not require notarization for a will to be legally binding.
The will simply needs to meet Ontario's basic legal requirements.
These include proper signing by the testator and witnessing by two people who are not beneficiaries.
Without notarization, the executor may need to provide additional documentation during probate.
This often includes an Affidavit of Execution, which is a sworn statement from one of the witnesses confirming they saw the testator sign the will.
What are the requirements for a will to be valid in Ontario?
Ontario law sets out three main requirements for a valid will.
The testator must be at least 18 years old and mentally capable of understanding what they are doing.
The will must be in writing.
It can be typed or printed, though handwritten wills have different rules.
The testator must sign the will at the end, or have someone else sign it in their presence and at their direction.
Two witnesses must be present when the testator signs, and both witnesses must also sign the will.
These witnesses cannot be beneficiaries or spouses of beneficiaries.
Can I write my own will and have it notarized in Canada?
Anyone can write their own will in Canada without using a lawyer.
This type of will is legal as long as it meets the province's requirements for validity.
A person can choose to have their self-written will notarized.
The notary public verifies the identity of the person signing and witnesses the signature.
However, notarization does not guarantee the will's contents are legally sound.
A notary cannot provide legal advice about what should be included in the will or whether the instructions are clear and enforceable.
What does notarizing a will do in Ontario?
Notarizing a will provides official verification of the testator's signature.
A notary public confirms the identity of the person signing and witnesses them signing the document.
The notary adds their official seal or stamp to the document.
This creates a formal record that the signing occurred on a specific date with proper identification.
Notarization does not make the will more legally valid than a properly witnessed will.
It simply provides an extra layer of documentation about the signing process.
When might it be helpful to notarize a will in Ontario?
Notarization can be useful when dealing with a handwritten will.
The extra documentation helps confirm the testator's identity and intent.
It may also help when the testator expects their will might be challenged.
The notary's official record makes it harder to dispute that the testator signed the document.
Notarization can speed up the probate process.
The notary's seal and records provide immediate proof of proper execution, which may reduce questions from the court.
People with complex estates or international assets sometimes choose notarization.
The additional authentication can be helpful when dealing with foreign authorities or institutions.
How can the validity of a will be challenged in Ontario, and does notarization play a role?
A will can be challenged on several grounds in Ontario. Common reasons include claims that the testator lacked mental capacity, was under undue influence, or did not properly execute the will.
Challengers may argue the testator did not understand what it meant to make a will. They might also claim someone pressured the testator into certain decisions.
Technical issues with signing and witnessing can invalidate a will. If the witnesses were beneficiaries or if proper signing procedures were not followed, the will may be deemed invalid.
Notarization does not prevent challenges to a will's validity. The notary's official record provides evidence that the testator signed the document and had their identity verified.
A notarized will does not prove the testator had mental capacity or was free from undue influence. Courts will examine all circumstances surrounding the will's creation, regardless of notarization.