Is a will without witnesses valid?

Q: I’m wondering if a will that was signed, witnessed but not dated is valid. The lawyer who prepared the will has died and the witness can’t be located. The testatrix was a resident of Ontario.

—Merrill

A: Wills are legal documents with formal signing requirements. Normally, if you do not follow these requirements, wills are not legally valid. In some jurisdictions, courts can waive strict compliance with signing rules. Substantial compliance with legal formalities can, in these jurisdictions, be sufficient to make wills.

You wrote that the person making the will resided in Ontario. Ontario does not have substantial compliance rules. Ontario has strict compliance requirements.

You may need a court ruling on the undated will. I will explain your options in a moment. You also have another issue. Normally Ontario wills require two signing witnesses. A witness must sign documents to affirm or swear under oath what was witnessed. This document is an affidavit to confirm both witnesses were present when the will was signed. These formalities are designed to protect will makers and beneficiaries.

In your case, witnesses also may not be available to sign this affidavit. Secondhand evidence can be accepted to satisfy these formal requirements but you will need specific advice from estate lawyers.

Courts require the best evidence possible. That will mean that you must show your attempts to locate witnesses. The best evidence available would be from the original witnesses. They could confirm how and when the will was signed. You must satisfy the court that you made reasonable inquiries but cannot locate the witnesses. Secondary sources can then be considered.

If witnesses cannot be found to confirm the signature, you must locate independent witnesses. These witnesses must not be beneficiaries. They must have knowledge of the will maker’s signature. This evidence can be provided by affidavits or by them appearing in court. The date on the will may also be confirmed by indirect or secondary evidence.

Locating lawyers

You mentioned the will lawyer has died. Law Societies may know if any lawyer’s law practice was taken over by another law firm. If so, that successor firm may be able to locate witnesses. These could have been former staff. They may be still working in another law firm.

An estate lawyer can specifically advise what searches should be carried out. You can then hopefully shorten this frustrating process.

The lesson to learn from this is important; Update your wills to avoid problems with out-of-date witnesses.

Ed Olkovich is a Toronto lawyer and certified specialist in Estate and Trusts Law

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