A will is the one legal document where mistakes are found only after the person who could explain them is gone. I see families who assumed estate planning meant writing down who gets the house and the RRSP. That’s part of it. The rest is getting the signing right, keeping the will current when your relationships change, and covering the years before death, which a will doesn’t touch.
Two Ontario statutes do most of the work here: the Succession Law Reform Act (SLRA) for wills, and the Substitute Decisions Act, 1992 (SDA) for powers of attorney.
How a will has to be signed
Under Section 4 of the SLRA, you sign at the end of the will while two witnesses watch, both present at the same time, and then they sign while you watch. Ontario now allows witnessing over video for good, but Section 4(3) requires one of the two witnesses to be an Ontario lawyer or paralegal.
When a homemade will gets this wrong, the estate pays for it:
- A beneficiary who witnesses loses their gift. Under Section 12 of the SLRA, if a beneficiary or their spouse signs as a witness, the gift to that beneficiary is void unless a court is satisfied there was no undue influence. That takes a court application.
- No affidavit of execution. To probate the will, your estate trustee files a Form 74D Affidavit of Execution of Will or Codicil sworn by a witness, under Rule 74 of the Rules of Civil Procedure. If nobody swore one at the signing, someone has to find a witness years later. People move, and people die.
- An affidavit that doesn’t match what happened. Template affidavits sometimes say the person “signed by making their mark,” which is meant for someone who can’t write their name. If you signed normally, that affidavit is wrong, and the court or the bank can reject it.
- Asking a court to save the will. Section 21.1 of the SLRA lets a judge accept a badly signed will if it clearly shows your final wishes. It’s a useful safety net, but it costs the estate thousands of dollars and months of delay.
Marriage and separation now work differently
The 2022 changes surprised a lot of people, especially in second marriages and blended families. Get this wrong and your estate can go somewhere you never intended, or face a claim under the Family Law Act.
| Situation | Before 2022 | Now | What to do |
|---|---|---|---|
| You get married | Marriage automatically cancelled your existing will, unless the will said it was made with that marriage in mind. | Marriage no longer cancels a will. (SLRA s. 16 was repealed effective January 1, 2022.) | Update your will after the wedding. Otherwise an old will leaving everything to your parents or a former partner still stands. |
| You separate but don’t divorce | Only a divorce removed a former spouse. A separated spouse still inherited under an old will. | For deaths on or after January 1, 2022, a separated spouse is treated as if they died before you. That applies once you’ve lived apart for three years, or earlier if you have a separation agreement, court order, or family arbitration award (SLRA s. 17). | Don’t wait three years. Sign a new will and update your beneficiary designations when you separate. |
| Your spouse survives you | Unchanged in 2022. | A married spouse has six months after the death to choose between what the will gives them and an equalization claim under the Family Law Act (ss. 5 and 6). The six-month limit in s. 6(10) is strict. | If there’s a marriage contract or children from a prior relationship, make sure the will and the contract line up. |
Powers of attorney cover your lifetime
A will says nothing until you die (SLRA s. 22). If a stroke or an accident leaves you unable to manage your affairs, nobody can pay your bills, renew your mortgage, sign for your company, or speak to your doctors on your behalf unless you’ve signed powers of attorney under the SDA. Without them, your family may need a court order or a Public Guardian process to step in.
Ontario uses two separate documents. (You may have heard of an “enduring” power of attorney. That term is from other provinces.)
- Continuing Power of Attorney for Property (SDA ss. 7–10). Lets the person you choose handle your money, real estate, and business interests, and keeps working if you lose capacity. For business owners, this is what lets someone run payroll and sign contracts without going to court.
- Power of Attorney for Personal Care (SDA ss. 46–48). Covers health care, housing, food, clothing, hygiene, and safety, and only takes effect once you can’t make those decisions yourself. Under s. 46(3), someone you pay to provide care or support services can’t act unless they’re your spouse, partner, or relative.
Both need two witnesses (SDA s. 10). These people can’t be witnesses: the attorney you’re naming or their spouse or partner, your own spouse or partner, your child, anyone under 18, and anyone who has a guardian. When I prepare powers of attorney, the witness affidavits are sworn at the same signing, and I check that names, middle names, and any substitute attorneys match across every document.
Some estates need more than I’ve covered here, including US citizens or US tax residents, a beneficiary on ODSP who may need a Henson trust, and special personal-care instructions under SDA s. 50. I flag these at the first meeting and bring in the right specialist.
A short checklist
- Sign a will, a continuing power of attorney for property, and a power of attorney for personal care. Have a Form 74D sworn for the will at the signing. Our will and POA instruction guide lists what to bring.
- Choose witnesses carefully. For a will, never a beneficiary or a beneficiary’s spouse (SLRA s. 12). For a power of attorney, never the attorney, a spouse or partner, or your child (SDA s. 10(2)).
- Update your will after a marriage or a separation.
- If you own shares in a private company, ask whether a second will makes sense. It can keep those shares out of probate and the Estate Administration Tax. The Form 74D is sworn only for the primary will.
- Check that your RRSP, RRIF, TFSA, and life insurance designations match your will, and that the will has a 30-day survivorship clause and a backup beneficiary.
Get your will and powers of attorney done
Barbarian Law® is at 14981 Yonge Street, Upstairs, in Aurora. We prepare wills ($750 + HST), powers of attorney ($350 + HST each), and a will with both powers of attorney for $1,000 + HST, mirror wills for couples, and primary and secondary will packages for business owners. Read our estate planning overview or see the full fee schedule.
- No retainer. No deposit. Invoiced after the work is delivered. You get a written estimate before I start drafting.
- I take your instructions, draft the documents, and run the signing myself.
Frequently Asked Questions
Signing a will, marriage and separation, powers of attorney, and our fees.
Does getting married cancel a will in Ontario?
No, not since January 1, 2022, when Ontario repealed Section 16 of the Succession Law Reform Act. If you marry and don’t update your will, your old will still applies.
What happens to my will if I separate but don’t divorce?
Under Section 17 of the Succession Law Reform Act, for deaths on or after January 1, 2022, a separated spouse is treated as if they died before you, so they lose gifts and executor roles under your will. That applies once you’ve lived apart for three years because the marriage broke down, or sooner if you have a separation agreement, court order, or family arbitration award.
What’s the difference between the two powers of attorney?
A continuing power of attorney for property covers money, real estate, and business interests, and keeps working if you lose capacity. A power of attorney for personal care covers health care, housing, and safety, and only takes effect once you can’t make those decisions yourself. Both come from Ontario’s Substitute Decisions Act, 1992.
Who can’t witness a power of attorney in Ontario?
Under Section 10(2) of the Substitute Decisions Act, 1992: the attorney or their spouse or partner, your spouse or partner, your child, anyone under 18, and anyone whose property is under guardianship or who has a guardian of the person.
How much does a will and power of attorney cost at Barbarian Law®?
A will is $750 + HST and each power of attorney is $350 + HST. A will with both powers of attorney is $1,000 + HST, and a couple’s plan (mirror wills and both powers of attorney for each of you) is $1,600 + HST, at launch prices locked in for bookings by December 31, 2026. That includes witnessing in our office, the Form 74D for the will, and witness affidavits for both powers of attorney. No retainer and no deposit. You’re invoiced after signing.
This article is general information, not legal or tax advice, and reading it does not create a lawyer-client relationship. For advice on your own estate plan, contact Barbarian Law®. Barbarian Law® is a registered trademark (CIPO Reg. No. TMA 1,359,734).
