In order for a typed will to be valid, Ontario’s legislation is clear that all formalities must be met, including that the testator: 1) makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time; and 2) two or more of the attesting witnesses subscribe the will in the presence of the testator.
When the will goes through the probate process, which is necessary for most estates, there will be many issues if the formal requirements set out in the Succession Law Reform Act are not met.
In the case of an 80-year old couple faced with the mandatory quarantine caused by COVID-19, the court has agreed to make a decision on an urgent basis as to whether the witnessing of a will by way of video conference meets the formalities of a will.
The formalities of a will may seem out of date given that our technology has long allowed for video conferencing. However, it is important to understand that the reason for the formal requirements is to allow the testators some protection whereas the witnesses, by way of physical presence in the same room as the testator, can help prevent situations of undue duress or incapacity. For this reason, as long as the formalities of a will are met, the will is presumed to be valid.
The witnesses cannot be beneficiaries or a spouse of the beneficiaries and, therefore, this means that the formalities may affect not just elderly people but also those that cannot meet with witnesses.
The Superior Court of Justice will decide on this issue within the week.
*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.