In the recent decision of BMO Trust Company v. Cosgrove, 2021 ONSC 5681, a holograph Codicil was the subject of dispute. The handwritten document includes the following language:

“End of page 3 of the Codicil for the Last Will and Testament of me, Nola Louise Bogie

Signed, Published and Declared by the said Testatrix, Nola Louise Bogie, at the City of Toronto, in the Municipality of Toronto, in the Province of Ontario,

As and for her Codicil as an attachment amending her Last Will and Testament.

Dated on: [left blank]”

The Court was tasked with considering whether the testator handwriting her name in the attestation clause constituted a signature in accordance with the formalities for executing a Will in sections 6 and 7 of the Succession Law Reform Act (SLRA).

The applicant, BMO Trust Company, agent for the estate trustee, was advocating for the validity of the Codicil, on the grounds that the testator’s signature appears twice in the attestation clause, and this placement of the signature does not render the Codicil invalid in accordance with s. 7(2)(c) of the SLRA.

The respondent, one of the beneficiaries in the underlying Will, contested the validity of the Codicil, arguing that although the testator’s handwriting of her name occurs in the attestation clause, she had no intention to sign, or give effect to, the Codicil.

In the analysis of the case, the Honourable Justice Dietrich noted that Ontario is currently a “strict compliance” jurisdiction, such that the SLRA formalities must be complied with. She reviewed the statutory requirements of section 6 of the SLRA, which 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.” Her Honour also reviewed section 7’s requirements regarding the signature, which must appear “at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.”

Further, Her Honour considered subsection 7(c) of the SLRA, which makes it clear that a will is not rendered invalid “by the circumstance that the signature is placed among the words …of a clause of attestation”, and subsection 7(e), which states that a will is not rendered invalid if there is sufficient space “on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.”

What distinguishes a “signature” from writing out one’s name in long hand was delineated, with Dietrich J. stating that “it must be apparent that what is alleged to be the act of signature was specifically intended by the testator to give legal effect to the document, per s. 7(1) of the SLRA.”

The evidence in this case was also assessed. It notably included that: (i) the holograph Codicil was an unfinished document, with certain blanks, including next to the space where the testator would have likely placed her signature, (ii) though not required, the testator intended to sign the document in the presence of specific witnesses, (iii) the testator understood that the Codicil needed to be signed to be valid, and (iv) after the Codicil was prepared the testator advised the Law Society of Ontario in writing that she had “handwritten a codicil (not yet signed).”

Justice Dietrich concluded upon the evidence proffered that the testator, in writing her name when drafting the holograph Codicil, did not intend to give legal effect to the document.

With legislative changes coming in the new year, we can expect to see similar cases cropping up with increasing frequency.

Thanks for reading and have a good day,

Natalia Angelini