What Is A Witness and Who Can Witness A Will?

What Is A Witness For A Will?

A witness in terms of creating a will is a person who participates in validating the will document. A witness is needed to confirm that the testator has indeed signed their own documents. The witness will confirm this by signing the documents as well to make them a legal document.

When And Why Do I Need To Have To Witness Signature On A Legal Will?

Once you have drafted your will and it accurately reflects your wishes, it’s time to make it a legal document. This is when you will need two qualifying witnesses.

Think about two people who are accessible to you, such as a neighbour a colleague or a family member that lives nearby. You will need to let your witnesses know in advance, so you can organize an appropriate time to get together and sign the will (note that due to COVID-19, several provinces have allowed for virtual witnessing of wills).

Do All Wills Have To Be Witnessed?

Having two witnesses is required for the legal validity of your written will using Willful, a lawyer, or a will kit. All types of wills require it, except holographic (handwritten) ones. If the validity of your will or your signature come into question, these individuals may have to testify in court to confirm their presence at the time of signing the document. 

Does A Holographic Will Need To Be Witnessed?

A holographic will is the only type of will that does not require witness signatures. A true holographic will must be handwritten and signed by you. You cannot use any mechanical processes (software, computers, type etc.) for a legal holographic will.

Who Can Witness A Will?

Your witnesses could be any two adults; friends, neighbours or co-workers, who are not named in the will.

The witness cannot be a beneficiary of the will, the spouse of a beneficiary at the time of signing, or a minor. Each witness must be at least the age of majority and mentally sound.

Your two witnesses can be related to you, or each other, and reside at the same address, as long as they meet the above criteria.

It’s important to remember that your witnesses are not required to read the will or know its contents.

Who Can Witness a Will in Ontario?

In Ontario, you must have two witnesses present when you sign your will, and they must sign your will as well. Each witness must be an adult (18 years or older) and mentally capable.

Your witnesses cannot be:

• Beneficiaries named in your will
• Spouses or partners of your beneficiaries
• Anyone else who could potentially benefit from the will (like children of beneficiaries)
• Minor children

Can A Beneficiary Be A Witness To A Will In Canada?

No, none of your witnesses can be beneficiaries of the will or the spouse of a beneficiary at the time of signing.

Can A Family Member Be A Witness?

Yes, a family member of sound mind not named in the will as a beneficiary (or a spouse of any other beneficiaries) can be a witness to your will as long as they are of the age of majority in your province.

How Many Witnesses Do I Need To Sign My Will?

To make your will a legal document, you must sign it in the presence of at least two witnesses and the two witnesses must also sign the will in the presence of you (the testator). This is to avoid conflicts of interest and possible misconduct in the will-making.

Can My Witnesses Signatures Be Digital?

British Columbia is the only province to permit digitally-signed wills. If you live in any other Canadian province, grab a pen! To maximize the likelihood that your requests are met, you will need a will that is physically printed and signed by you and your witnesses in ink— sometimes referred to as a wet signature.

Do Wills Have To Be Notarized?

No, you do not need to have your will notarized for it to be legal, and your witnesses don't need to be lawyers or notaries either. As long as you meet the requirements in your province, your will is legally valid.

What Is The Signing Process?

In most Canadian provinces it is not legal to sign your will digitally. To maximize the likelihood that your requests are met, you will need a will that is physically printed and signed by you and your witnesses in ink— sometimes referred to as a wet signature. The only exception to this rule is residents of British Columbia. On December 1, 2021 Bill 21 has come into effect and you can now digitally sign your will. Learn more about Bill 21 here.

Continue reading for how you can sign your will with a wet signature.

1. Print and Review Your Will

Using Willful, once you are ready to print out all of the documents, read them over thoroughly and review the easy-to-follow instructions page that comes with each document. 

Make sure you understand everything contained in the will before signing. If there is anything that does not reflect your wishes or you wish to update/edit a will made with Willful, you can go back to your dashboard and make your desired changes. Print the version that best reflects your wishes and destroy other copies to avoid confusion.

2. Schedule a Meeting With Your Witnesses

Once you’ve chosen and informed your witnesses, organize everyone on a predetermined date and time so that everyone can be present for the signing. 

Starting with the testator and followed by each witness, each person should initial each page in the designated spot. This also prevents any altering of the will after it’s been signed. 

In front of your two witnesses, on the last page of the will, you should sign your full name. Everyone involved must stay present until you have finished signing. However, the one witness doesn’t need to be present while the other witness signs, although you, the testator, do. Sequence matters, and the testator must sign in the presence of the witnesses who are present at the same time before the signature of either of the witnesses.

3. Keep the Original Copy of the Will

Make sure there is only one original copy of the will. It’s okay to create copies, but it’s important to know which is the original; therefore we recommend signing in blue ink. 

Do not sign a second will or any of the photocopies as it will be difficult to distinguish from the original will. 

And that’s it! After the printed document is signed and witnessed, it becomes your legal last will and testament. The most recent wet-signed documents will be considered your official legal documents. 

We recommend customers of Willful destroy/shred past versions of your last will and testament (and other outdated estate planning documents) and follow the same process with two witnesses for every version you wish to make legal. 

Store in a safe place, let the people you trust know where it is stored and carry on with peace of mind knowing your will has been created. Review and update as necessary.

BC residents have the option to virtually sign and witness their documents. Learn more about virtual witnessing and electronic signatures on wills.

✏️ Start Creating Your Will For Free Today →

Will My Witnesses Be Required In Future? 

If your will is required to go through probate (which most are), in all provinces except BC one of your witnesses will need to provide a sworn affidavit of execution attesting to the fact that they were witness to the creation of your will. You can complete this at the time you execute your will, or a witness can provide it at the time of your passing.

If you did not complete one before you pass away, your witness would be required to provide one at the time of your passing. If your executor cannot find a witness, or they’ve passed away, they would be required to provide evidence of the search for the witnesses, and they would be required to provide other evidence of the validity of the will.

Your witnesses may also be called before the courts if the validity of the will is called into question, or if there are claims against the estate.

What Requirements Do You Have To Meet To Write A Will In Canada?

There are two requirements to be able to write a will in Canada: You must over the age of majority and be of sound mind. If you are under the age of majority but are married, have children or are a member of the armed forces, there are specific circumstances which allow you to create a will as well.

Legal Age To Write A Will

When it comes to federal laws, the age of majority is 18. But the legal age for making a will is under provincial jurisdiction, and not all provinces have the same age of a majority.

If you're in Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan, the age of majority is 18.

If you're in British Columbia, New Brunswick, Newfoundland and Labrador, Nova Scotia, the Northwest Territories, Nunavut, or the Yukon, the age of majority is 19.

What Is The Meaning Of 'Of Sound Mind'?

In general, to be "of sound mind" means to be mentally capable. In this context, it means you are able to understand and appreciate your estate, who you are leaving assets to, who you're executor will be, and how making a will will change your estate settlement process. However, note that the legal definition of mental capacity will vary based on the laws in each province or territory.