Probating a Handwritten Will in Ontario

Finding a handwritten will with no witness signatures can leave you wondering whether it counts. In Ontario, a handwritten will can be valid, but there are conditions, and the court needs proof before it will issue a certificate.

This article explains when a handwritten will is accepted, the proof you must provide, and what may be possible if the document does not meet the rules.

When a handwritten will is valid

Most wills must be signed at the end by the testator, or by someone else in the testator's presence and at their direction. The testator must make or acknowledge the signature in front of two or more witnesses present at the same time, and the witnesses must sign in the testator's presence.

A holograph will is the exception. Under the Succession Law Reform Act, a will made wholly in the testator's own handwriting and signed by the testator is valid without any witness. The word wholly matters. A document that is partly typed or printed may not qualify as a holograph will.

The position of the signature also matters. A will, holograph or not, is valid if the signature's position makes it apparent on the face of the will that the testator intended the signature to give effect to the will.

The proof the court requires

Because no witnesses saw it signed, someone else must confirm the handwriting. The rules require an affidavit in Form 74F confirming that the handwriting and signature are the deceased's. Usually this is sworn by someone who knew the person's writing well.

• Form 74A application, Form 74C draft certificate and proof of death.
• Form 74F for a holograph will, in place of the affidavit of execution.
• The original will, attached as an exhibit to an affidavit.
• Any renunciations or consents on Form 74G that apply.

The original will must be filed on paper, even if the application itself is filed by email. The application and affidavits must be signed before a Commissioner for taking affidavits.

If the document does not meet the rules

If a document was not properly executed but sets out the deceased's testamentary intentions, the Superior Court of Justice may order it valid if satisfied that it does. This applies to deaths on or after January 1, 2022. It does not validate electronic wills.

This is a court application, not a form to fill in, and the outcome depends on the evidence. A lawyer can tell you whether it is worth pursuing.

Notice and what happens after filing

The application must be served on every beneficiary, including charities and contingent beneficiaries, before filing. If a beneficiary is a minor, service is also needed on the Children's Lawyer.

Applications are typically processed within 15 business days. The registrar may ask for further information and must refer applications that raise issues to a judge. A handwritten will with unclear wording or doubts about the handwriting may be more likely to raise such issues.

What to do next

• Keep the original will safe and do not mark, staple or alter it.
• Check that it is entirely handwritten and signed, and note where the signature sits.
• Identify someone who can swear to the deceased's handwriting and signature.
• Search for any later will or codicil before you apply.
• Speak with a lawyer if the will is partly typed, unsigned, unclear or likely to be challenged.

Frequently asked questions