RESOURCES

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.

Join our newsletter and don’t miss out on a blog post!

M. W. Faizan is an Associate Lawyer at Kormans LLP. You can reach M. W. Faizan here: mwfaizan@kormans.ca.

The information and comments herein are for the general information of the reader and are not intended as advice or opinion to be relied upon in relation to any particular circumstances. For particular application of the law to specific situations, the reader should seek professional advice. Kormans LLP cannot be responsible for the content of other sites. We expressly disclaim all liability with respect to actions taken or actions not taken based on content received from a third party website linked, directly or indirectly, to that of Kormans LLP.  The link to another site is not to be construed in any way as an endorsement of the host, the site or the information contained therein, nor is such link to be inferred as an association or affiliation with the host.