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| Kimberly Gale |
What makes a will valid in Ontario
Under Ontario’s Succession Law Reform Act (SLRA), a will is valid only if it meets specific formalities. In short, it must:
- Be in writing (s. 3);
- Be signed at the end by the testator (the person making the will) or by someone in their presence and by their direction (s. 4(2)(a));
- Be witnessed by two or more people present at the same time when the testator signs or acknowledges their signature (s. 4(2)(b));
- Be signed by both witnesses in the testator’s presence (s. 4(2)(c)).
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There’s one exception: a holograph will — a will entirely written and signed in the testator’s own handwriting — doesn’t need witnesses (s. 6). These are often scribbled on paper at the last minute, but they carry their own risks.
When homemade wills go wrong
The courts are filled with cautionary tales of DIY wills gone awry. In Zerbinati v. Zerbinati, 2013 ONSC 7630, the court examined whether a will was properly acknowledged and witnessed under the SLRA. The testator had not clearly signed in the presence of both witnesses, leading to confusion and litigation over whether the will was valid at all. Ultimately, the court accepted that acknowledgment could be made through language or conduct — but only after costly and stressful proceedings.
In other cases, handwritten or improperly executed wills have been declared invalid because a witness was also a beneficiary (which voids their gift unless undue influence can be ruled out), because a signature was placed in the wrong location, or because pages were added after signing. These technical errors may sound minor — but they can destroy an estate plan completely.
Imagine spending your final years believing your will is in order, only for your family to discover after your death that it’s legally worthless. Courts can sometimes “save” a defective will under s. 21.1 of the SLRA (a 2021 reform allowing judges to validate documents that clearly express the deceased’s intentions), but this relief is discretionary and unpredictable. Litigation under that section can cost far more than having a lawyer draft a proper will in the first place.
Why homemade wills cause chaos
Homemade wills often fail not only because of signing mistakes but because of poor drafting. Ambiguous wording, missing residuary clauses and failure to consider contingencies (such as a beneficiary dying first or a child being under 18) can lead to partial intestacy — meaning parts of the estate are distributed under Ontario’s default succession laws.
Even something as simple as naming “the kids” without specifying which children, or leaving assets “to my spouse” without clarifying if a common-law partner is included, can spark bitter disputes. In blended families, these issues are magnified.
Another common problem is that DIY wills rarely consider tax planning, executor powers or guardianship provisions for minors. Homemade documents can also unintentionally disinherit loved ones or expose the estate to claims for support under the Dependants’ Relief provisions of the SLRA.
The false economy of doing it yourself
People often assume that hiring a lawyer to prepare a will is expensive. In truth, it’s one of the most cost-effective forms of legal insurance. A well-drafted will does far more than distribute assets — it minimizes taxes, prevents conflict and ensures your wishes are carried out smoothly.
By contrast, a defective homemade will can cost your family thousands of dollars and months (or years) in court. Judges and lawyers sometimes refer to these cases, only half-jokingly, as “job creation through bad drafting.”
Lessons learned
If you are considering writing your own will, remember:
- You must comply with every formal requirement of the SLRA.
- Witnesses cannot be beneficiaries or married to one.
- Signatures, page order and dating all matter.
- Handwritten (“holograph”) wills should be used only in emergencies.
- Even if a court can validate an imperfect document, there’s no guarantee it will.
In estate law, good intentions don’t count — execution does.
Final thoughts
Homemade wills are a gamble. They can create confusion, delay and heartbreak for the very people you’re trying to protect. As the courts repeatedly remind us, a will is one of the most important legal documents a person will ever sign. Spending an hour with an estate lawyer is not a luxury — it’s a safeguard against the horrors of homemade wills.
Kimberly Gale specializes in estate litigation and elder advocacy, while also offering mediation services through her boutique law firm, Gale Law, located at 330 Bay Street. Gale has honed her advocacy in a variety of settings and is a fierce advocate for her clients, leading her to be nominated for Litigator of the Year at the Canadian Law Awards 2024. She also founded a not-for-profit organization called NCA Network, which is a diversity and inclusion group catered to internationally trained lawyers living in Ontario. Gale serves as secretary for the OBA’s Elder Law Section, advocating for seniors’ rights and completed her LLM in dispute resolution at Osgoode Hall Professional Development.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, LexisNexis Canada, Law360 Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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