Emergency Holograph Wills for Clients in Isolation

March 20, 2020 Ian Hull Estate Planning, In the News Tags: , , , , , 0 Comments

In our blog on March 18th, we gave some ideas for getting formal wills executed when the lawyer couldn’t be present to witness.   In today’s blog, we have a few more options for our clients to consider if getting a Will executed immediately is necessary.

As we all know, holograph Wills are valid in Ontario.  To qualify as a valid holograph Will, the document must be in the handwriting of the Will-maker and signed.  The Succession  Law Reform Act speaks to being “wholly” in the Will-maker’s handwriting.  However, case-law supports the validity of a handwritten portion of a document, even if the entire document is not in the Will-maker’s handwriting. To the extent any part of the document is not in the Will-maker’s handwriting, that part will be excluded from the otherwise valid holograph document.

We have several clients who are in isolation making it impossible to have two witnesses execute our drafted Will.  For a simple but, emergency situation, we are recommending that a holograph Will be done.  We have a few key provisions to be included as a bare minimum:

  1. Identifying the document as a Will;
  2. Revoking prior Will;
  3. Appointing an executor;
  4. Simple dispositive provisions;
  5. Executor’s power to sell; and
  6. Date

The key instructions are:

  1. The entire document must be handwritten by the Will-maker; and
  2. The Will-maker must sign the document at the end.

Proof of handwriting will be necessary if the holograph Will must be probated.  One option that may come in handy is to have the Will-maker video the writing and signing of the document.

We also strongly recommend that the client come in to sign a formal Will as soon as possible.

Click on the link to see a sample Client Holograph Will Instruction sheet for use in these kinds of situations.

In Monday’s blog, we’ll discuss the novel idea that our colleague, Mary Stokes raised.  Can a client use a simple holograph Will to incorporate the terms of a comprehensive formal Will which can’t be properly signed because of a lack of witnesses?

Hope you are all safe and healthy,

Ian Hull and Jordan Atin

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