In Ontario, a testamentary document that is entirely made in the handwriting of a deceased and signed by him or her may be considered a valid will without the necessity of witnesses. But where such a document has two lines with the word “witness” under each line at its end, and where no one has signed as a witness, does the document still meet the requirements of a valid will?
This was the fact situation which presented itself in the recent Ontario case: Re Atherton Estate. The Court concluded that, while there was no question that the document met the formal validity requirements of a holograph will*, the surrounding circumstances suggested that the deceased intended the document to be a draft that would not take effect until it had been typed out and re-executed by the deceased in the presence of two witnesses.
The wrinkle was that, when the relative to whom the deceased had given the handwritten documents returned to visit him in hospital the next day with the typewritten copies, the deceased exhibited no intention to execute the will in its typewritten form.
David M. Smith
*Succession Law Reform Act, R.S.O. 1990, C. S. 6