Can I make a will in my own handwriting?

May 9, 2019 James Jacuta Beneficiary Designations, Estate & Trust, Estate Litigation, Estate Planning, Trustees, Uncategorized, Wills 0 Comments

There is a well-known case that students read while in law school that has to do with requirements for making a will in your own handwriting. It involves a will by farmer Cecil Harris who was farming near Rosetown, Saskatchewan when on June 8, 1948 while out working alone in his field, he suffered a misfortune and was pinned under his tractor for ten hours. With his pen knife he scrawled on the tractor’s fender: “In case I die in this mess, I leave all to wife” and added his signature. The Saskatchewan court admitted the tractor fender into probate as a will. It had met the legal requirements of being in his own handwriting and signed by him, and the fender is now on display at the University of Saskatchewan Law School.

Making a will is a serious and often complex endeavour that one should not casually undertake without professional advice. Having said that, the law in many countries recognizes a “holographic” or handwritten will, when properly completed. In Ontario the relevant legislation is in the Succession Law Reform Act, which states, “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. R.S.O. 1990, c. S.26, s. 6.”

Forty years ago when I first read the “tractor” case in law school in 1979, the most modern piece of equipment in many law offices was the electric typewriter. Since then, changes include the introduction of the fax machine, the word processor and then the computer, the internet and email, and smart phones. Law students today are of a generation that grew up with smart phones in their hands starting at about the same time they learned to walk.

Perhaps it will soon be time to recognize a “handwritten” electronic holograph will. In Ontario there have been none so far. Nevertheless, it seems to be an interesting question. For example, if I take my ipad and handwrite on the device “All to my wife” and sign it as my holographic will so it is available in electronic form, it will not be recognized as valid in Ontario. However, if I take the same ipad and damage the surface of the screen by scratching on it, “All to my wife” with my signature, then this will be recognized as a valid will. This seems to me to be an incongruous result. In a time when everyone has a smart phone the matter might yet be resolved by new legislation or perhaps even by an activist court and a modern version of the tractor case.

 

Thanks for reading!
James Jacuta

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