- A will can be valid on its own terms under the Succession Law Reform Act, but the estate normally has to be probated if the deceased owned real property or assets held by a financial institution.
- Jointly held assets and assets with a designated beneficiary pass according to how they are owned or designated, usually without a certificate.
- The Land Titles Act generally requires the estate trustee to obtain a certificate of appointment before dealing with land after an owner dies.
You may be holding a signed will and wondering why a bank or land registry still wants court approval. The short answer is that a will and a certificate of appointment do different jobs.
This article explains what makes a will valid, what the court process adds, and where institutions commonly ask for the certificate. Policies differ between institutions, so use this as general background.
A valid will and probate are different things
A will is valid only if it is signed at its end by the testator, or by someone else in the testator's presence and at the testator's direction. The testator must make or acknowledge the signature in front of two or more witnesses present at the same time, and those witnesses must sign in the testator's presence.
There are exceptions. A will made wholly in the testator's own handwriting and signed by the testator is valid without any witness. A will is also valid if the position of the signature makes it apparent on its face that the testator intended it to give effect to the will. For deaths on or after January 1, 2022, the Superior Court of Justice may order a document that was not properly executed valid if it sets out the deceased's testamentary intentions, though this does not validate electronic wills.
In plain words, the will is the document that sets out the wishes. The certificate of appointment is the court's confirmation that the document has been reviewed and that a particular person has authority to deal with the estate.
What the court process adds
Someone outside the family, like a bank, cannot easily tell whether a will is genuine, current, or properly signed. The probate process puts that question in front of the court.
- Proof of how the will was signed: an affidavit of execution (Form 74D), or Form 74E for an altered or marked will, or Form 74F for a holograph will.
- For a holograph will, an affidavit confirming that the handwriting and signature are the deceased's.
- Other evidence of due execution, which the court may require when a witness has died or cannot be found.
- Notice to every beneficiary, including charities and contingent beneficiaries.
- Review by the registrar, who may ask for further information and must refer applications that raise issues to a judge.
The details of how a will was witnessed can matter. For example, a gift to a witness, or to the witness's spouse, is void as to them, although the will itself is not void. That is saved if at least two other independent people also witnessed the will, or if the court is satisfied there was no improper or undue influence. A document holding a stranger's money should not rest on guesses about issues like these.
Where institutions and registries ask for the certificate
| Situation | What generally applies |
|---|---|
| Real property or assets held by a financial institution | The estate normally has to be probated. Check whether the institution requires a certificate of appointment or a small estate certificate. |
| Jointly held assets, or assets with a designated beneficiary such as an insurance policy or joint bank account | They pass according to how they are owned or designated, so probate is not always required. |
| Dealing with land after an owner dies | The Land Titles Act generally requires the estate trustee to obtain a certificate of appointment first. |
| First dealing after a Registry-to-Land-Titles conversion, where there is a will | The certificate may be waived if the property was converted by the Ministry. An affidavit stating the estate's value is required, and a covenant to indemnify the Land Titles Assurance Fund is still required. |
What a bank will release before a certificate is issued varies by institution, so ask each one for its written requirements early.
Authority exists before the certificate, but proof comes with it
The deceased's property vests in the personal representative, who holds it as trustee for the people entitled, subject to the payment of debts. That is the legal position, but an institution still needs evidence that you are that person. The certificate is that evidence.
For smaller estates, there may be a simpler route. Estates of $150,000 or less can apply for a Small Estate Certificate.
What to do next
- List every asset and note how it is held: in the deceased's name alone, jointly, or with a named beneficiary.
- Ask each bank, insurer and registry what it requires, in writing.
- Check whether any land is involved and whether a certificate of appointment will be needed to deal with it.
- Keep the original will safe, as it must be filed on paper if you apply.
- Note who signed as witnesses and whether any witness is also a beneficiary.
- Speak with an Ontario estates lawyer if the will looks handwritten, altered, or improperly signed.
Frequently asked questions
Is a will valid in Ontario if it is never probated?
Whether a will is valid depends on how it was made, and the rules have exceptions. Generally, it must be signed at its end by the testator in front of two or more witnesses present at the same time, who then sign in the testator's presence. A will made wholly in the testator's own handwriting and signed by the testator is valid without any witness. Separately, the estate normally has to be probated if the deceased owned real property or assets held by a financial institution. How this applies to your situation is worth confirming with a lawyer.
Do I always need probate when there is a will?
No. Assets held jointly or with a designated beneficiary pass according to how they are owned or designated. Estates of $150,000 or less can apply for a Small Estate Certificate.
Why does a land registry want a certificate of appointment?
The Land Titles Act generally requires the estate trustee to obtain a certificate of appointment before dealing with land after an owner dies. There is a narrow exception for a first dealing after a Registry-to-Land-Titles conversion where there is a will.
Is a handwritten will valid?
A will made wholly in the testator's own handwriting and signed by the testator is valid without any witness. To prove it for probate, an affidavit in Form 74F must confirm that the handwriting and signature are the deceased's.
Sources
- O. Reg. 110/21 (Estates Act – small estates) — Ontario e-Laws
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Ontario Court Forms – Filing Electronic Documents in Probate Proceedings — ontariocourtforms.on.ca
- Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 4(2) — Ontario e-Laws
- Rules of Civil Procedure, Reg. 194, r. 74.04(1)(d) — Ontario e-Laws
- Ontario.ca – Administering estates — ontario.ca
- Estates Administration Act, s. 2(1) — Ontario e-Laws
- Ontario.ca – Land registration bulletin EM200003 Estate Conveyancing — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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