Does a Handwritten Will Need Probate in Ontario?

Sometimes a family finds a will in a drawer or a filing box, written entirely in the deceased person's own hand, with no witnesses. The first questions are usually the same: is this a real will, and do we have to go to court with it?

This article explains how probate generally works in Ontario when the will is handwritten, which court form is aimed at that situation, and what the court looks at. It does not decide whether any particular document is valid. That depends on the facts and is worth confirming with a lawyer.

Does a handwritten will need probate?

Whether probate is needed turns on the assets. Probate is usually needed if the deceased owned real property or held assets at a financial institution that requires it. If neither applies, probate may not be needed at all, but banks set their own requirements, so it is worth asking each one.

Probate is a court process in the Superior Court of Justice. A court looking at a handwritten, unwitnessed document will want evidence about it, and the outcome depends on the facts.

The form made for handwritten wills

Ontario's application package includes Form 74F, the affidavit attesting to the handwriting and signature of a holograph (handwritten) will. Who is best placed to swear that affidavit, and what it should say, is something a lawyer can help with.

A handwritten will is not the only kind of will with its own affidavit. The table shows how the supporting affidavits line up.

The original will must be attached to the required affidavit as an exhibit. A photocopy or a phone picture is not a substitute for the original.

What goes into the application

Besides the affidavit, the application generally needs the following.

• The deceased's original will and any codicil, if there is one.
• Proof of death, such as a death certificate from a funeral director or the Registrar General, or a court order.
• Form 74A, the application, signed before a Commissioner for Taking Affidavits.
• Form 74B affidavit of service or 74B.1 lawyer's certificate of service.
• Form 74C, the draft certificate.
• The total value of real property, personal property and the whole estate at the date of death, which Form 74A requires.

If the application is emailed to the court, the original will and other originals must still be filed on paper at the court location where the application was filed. Do not staple, mark or trim the original while getting it ready.

Which application, and what tax applies

You apply for a Small Estate Certificate if the estate is valued at up to $150,000. Otherwise you apply for a Certificate of Appointment of Estate Trustee. The small estate process uses Forms 74.1A, 74.1B and 74.1C.

The value is rounded up to the nearest $1,000. Ontario's example is a $239,250 estate taxed as $240,000, which gives tax of $2,850. Assets passing outside the estate, such as a jointly owned asset passing to the surviving owner or an RRSP with a named beneficiary, are excluded from that value. The tax is paid as a deposit with the application and becomes the tax once the certificate is issued.

Telling the family and what happens after filing

Before filing, the applicant must send a copy of the signed application to each beneficiary, meaning everyone entitled to a share, by email, regular mail or courier to their last known address. For a small estate, this must happen at least 30 days before filing, and Form 74.1B must confirm it.

Ontario says applications are typically processed within 15 business days, and longer if documents are missing or a judge must decide an issue. Court staff check for other applications, objections and any more recent will. A refusal comes as Form 74O with reasons. If someone has filed an objection on Form 75.1, the applicant must serve Form 75.3 on the objector.

What happens if the handwritten document is not accepted depends on your situation, so it is worth confirming with a lawyer. Where there is no will, the spouse or common-law partner has first right to apply, then a close adult relative such as a child, parent, grandchild, sibling, nephew or niece.

What to do next

• Keep the original handwritten document safe, flat and unmarked, and make copies only for reference.
• Search carefully for any other or more recent will, since court staff will check for one.
• List the real property and accounts, and note which ones need probate.
• Make a list of everyone who may be entitled to a share, including any minors.
• Ask a lawyer whether the document is likely to be accepted and who should sign the Form 74F affidavit.
• After a certificate is issued, remember the Estate Information Return is due within 180 calendar days.

Frequently asked questions