Does a Holograph Will Need to be Signed?

September 20, 2013 Hull & Hull LLP Estate & Trust Tags:

Section 6 of the SLRA states that “A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.”

The position of a signature somewhere other than the end of a testamentary document does not, in itself, render the document invalid (s. 7(2)). The signature on a will may be “placed among the words of a testimonium clause or a clause of attestation” (s. 7(2)(c)(i)). However, such a signature does not give effect to dispositions or directions underneath the signature (s. 7(3)).

In Wood v. Smith [(1993) All ER 556 (CA)], the English Court of Appeal decided that the appearance of testator’s name in heading of a holograph qualified as a signature for the holograph will in question.

It is stressed in Papageorgiou v. Walstaff Estate (2008 CarswellOnt 3828, 42 ETR (3d) 50) that there is currently no doctrine of substantial compliance in Ontario, and the judgments of many other jurisdictions, where substantial compliance is observed, will not apply here (at paras 29-32). Papageorgiou does note, however, that in situations where a will is signed in wrong place or the name is initialed or printed instead of signed, these represent curable defects that should not stand in the way of the will being admitted to probate (para 32).

In provinces other than Ontario, the courts allowed more relaxed formal requirements for holograph wills, which did not require a signature on the document if it was clear that it represented the testamentary wishes of the testator who intended to give effect to the document as a will, were applied. [Martineau v. Manitoba (Public Trustee), 1993 CarswellMan 76, 50 ETR 87; Re Bunn Estate, 1991 CarswellSask 105, 41 ETR 100; Belser v. Felury, 1999 CarswellMan 221, 139 Man R (2d) 149]

Re Clarke 1982 CarswellOnt 816, 39 OR (2d) 392
In this case, the testator had printed his name at the top of the document, but nowhere else. The court decided that the printed name was sufficient to satisfy the requirement of the testator’s signature. Justice Scott reviewed the Re Harrison decision (1885, 30 ChD 390), which relied upon the presumption against intestacy, and encouraging documents expressing a testator’s wishes to be read as a will whenever appropriate, regardless of form (page 5).
However, Justice Scott reluctantly stated that under s. 7(3) of the SLRA, the dispositions could not be given effect because they were positioned underneath the ‘signature’, and the will was therefore invalid (para 36).

Sisson v. Park Street Baptist Church 1998 CarswellOnt 3704, 24 ETR (2d) 18.
This case seems to apply the substantial compliance doctrine to validate an Ontario will that was witnessed only by one person. Justice Murphy reviewed the case law of other jurisdictions where similar steps had been taken in order to permit wills, proved to express the intentions of the testator, being admitted to probate despite non-compliance with formal requirements. The Court was satisfied that the will reflected the actual intention of the testatrix. (at para 38) The purpose of the formalities outlined in the Wills Act and, in Ontario, the Succession Law Reform Act were considered to be safeguards against the probate of wills where it is not the case that the document reflects the testator’s intentions. Justice Murphy stated that “the absence of legislation on point should not stop the court from developing the common law where, in circumstances like this, there has been substantial compliance…” (para 40) The will was admitted to probate.

David M. Smith


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