Probably. But it depends. 

There is no statutory requirement that a will be signed in ink. Under the Succession Law Reform Act, formal validity of a will requires that the document be in writing and that it be signed by the testator. The legislation does not mandate a signing in ink, or preclude a signing by pencil. 

However, if the will is only signed in pencil, this may raise an issue of whether the document was truly intended to be a testamentary instrument. This is relevant where the will is a holographic will, or where it is not a truly holographic will but its execution is not in compliance with the due execution provisions of the legislation (for example, is not properly witnessed) and the document is being put forward to the court for proof as being in “substantial compliance” with the formal requirements of execution. In such a case, the court must be satisfied that the document in question embodies the testamentary intentions of the deceased.  

In Komonen v. Fong, 2011 NSSC 315 (CanLII) the deceased left a “stationer’s will” that was partly pre-printed and partially hand-written by the Deceased in pencil. The will was signed by the deceased, also in pencil. The will was not witnessed. The court was asked whether the pencil-signed will could be admitted to probate. 

The court did not rule out the possible probate of the will simply because it was signed in pencil. However, the fact that it was filled out and signed in pencil assisted the court in coming to the conclusion that the propounder did not meet the burden of establishing that the document set out the final testamentary intentions of the deceased. Of particular relevance were notes made by the deceased after the signing of the document referring to the document as a “sketch”. In the notes, the deceased also stated that he had not completed making a will, and that he hasn’t made firm decisions yet. Perhaps most persuasive was a note from the deceased wherein he set out his own  (perhaps incorrect) understanding of the effect of completing the will in pencil: “I used a pencil the first copy for the will already I used a pencil, which is not legitimate because I am thinking that I want the  [to?] make changes to the will.” [sic] Based on these notes, the court was able to conclude that the deceased had not yet formed a fixed and final intention as to the disposal of his property upon death. The deceased did not have the necessary animus testandi. 

Thanks for reading. 

Paul Trudelle