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Understanding the Validity of a Will

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M. Wajahat Faizan
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May 2, 2024
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One of the most inquired aspects in the domain of estate planning and testamentary dispositions is about the validity of a will and its storage. It is a matter of great importance to establish the components that ensure authenticity and veracity of the will, specifically in context of disposition, and lawful transfer of assets upon the testator's demise.

Any irregularity in this ambit can lead to unnecessary delays and obstacles for the estate. A formal will must conform to at the least the following symmetries:

  1. Testamentary Formalities: A formal will be documented in line with the directives of the testator, and it is physically signed by the testator at its conclusion, marking a clear indication of the content’s endorsement and authentication.
  2. Witnessing Requirements: The presence of witnesses serves as a safeguard against fraud, coercion, or any other form of undue influence, minimum two witnesses are required to affirm the testamentary capacity of the testator and the genuineness of the will.
  3. Independence of Witnesses: It is very important that the witnesses be independent parties with no vested interest in the disposition of the estate. This precludes beneficiaries and their spouses from acting as witnesses, and failure of the same can render the bequest void or subject to challenge, unless compelling evidence can be presented to determine the absence of any undue influence or duress, a matter for the court of law to adjudicate on.
  4. Affidavit of Execution: An affidavit of execution should be provided by one of the witnesses establishing the validity of the will signing process. This affidavit serves as a proof of execution of the will and may prove invaluable in the event of any legal challenges subsequent to the testator's demise.
  5. Will Storage: The protected storage of the original will is central to its validity, as the absence of the last known will in the testator's possession may lead to the presumption of its intentional destruction, as a result the testator shall be deemed to have died intestate or without a will. To safeguard against this scenario, testator should secure the will in a safe deposit box, usually with a bank or fire and water-resistant cabinet, may also be available with some lawyers.

To conclude, while these criteria form the foundational elements of a will document, it is always prudent to seek the expertise of an accountant and financial advisor to develop a comprehensive strategy before commencing the will preparation process with an estates lawyer.

Our firm stands ready to offer assistance in preparing wills and powers of attorney. Please don't hesitate to reach out to us to commence the process. Get in touch with us though phone at (905) 270-6660 or by email at info@kormans.ca.

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M. Wajahat Faizan
Associate Lawyer
mwfaizan@kormans.ca
About
M. Wajahat

Faizan’s academic background includes a Juris Doctor (J.D.), an LL.M. from Aberdeen Business School in Scotland, and an LL.B. (Hons.) from the University of London. He has also earned certifications in Construction Law and Public Policy from the prestigious Osgoode Hall Law School, showcasing his diverse expertise across multiple areas of law. After being called to the Ontario Bar in 2020, he gained experience in real estate, commercial, and immigration law at a boutique firm before joining Kormans LLP.

Specializing in a wide range of legal services, Faizan focuses on residential and commercial real estate transactions, financing, wills and estate planning, and contractual matters. His expertise also extends to Islamic wills and Sharia-compliant financing, where he offers culturally sensitive solutions tailored to the needs of diverse clients.

Faizan’s thought leadership is evident in his published articles on Islamic wills and Halal mortgages, which can be found on the Kormans website. His expertise extends beyond Islamic wills, with a deep understanding of real estate law showcased through writings on topics such as Tarion warranties, joint tenancy, and easements. These works highlight his broad knowledge of property law and commitment to providing clients with clear, informed guidance.

In addition to his contributions to real estate law, Faizan has made significant strides in immigration law. His representation before the board in the landmark case of Vilcassim v. Canada helped establish a crucial precedent in children’s rights within Canadian immigration law.

With a strong background in law, Faizan continues to teach as one of the pioneering professors in the Graduate Diploma in Immigration and Citizenship Law program at the prestigious Queen’s University, where he shares his practical experience and knowledge with future professionals.

His contributions to the legal field were recognized with the Queen Elizabeth II Platinum Jubilee Award Pin, honoring his dedication and service to immigration law. He is also the recipient of the King Charles III Coronation Medal, a prestigious award recognizing contributions to community and public service. This recognition was granted through a rigorous selection process led by the Mississauga Streetsville Community Leadership Association and the Canadian Heraldic Authority at the Chancellery of Honours, Rideau Hall.

Outside of his professional life, he enjoys travelling, has a passion for cricket, plays weekend squash and frequently participates in youth mentorship programs.

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