There are many ways a will can be prepared. One of these ways is when the testator writes the will entirely in their handwriting, also known as a holograph will. The case of McKenzie v Hill, 2022 ONSC 4881 discusses the elements required of a holograph will.

In this case, the surviving brother of the deceased brought an application to declare that a handwritten document was a valid holograph will. The document titled, “An Agreement to Transfer Property” stated that a condo owned by the deceased was to be transferred to the applicant. The document was signed by the deceased and a witness.

The Judge found that based on the evidence provided by the applicant, he had failed to satisfy the court that the document was a valid holograph will.

The Succession Law Reform Act 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 Supreme Court of Canada has found that to be a valid holograph will, the person propounding the document must satisfy the court that it contains, “a deliberate or fixed and final expression of intention as to the disposal of property upon death”.

The Judge in this case was not convinced that the document was a fixed and final expression of her intention as to the disposal of her property upon death. Firstly, the document did not refer to any other property besides the condo, which meant that it did not dispose of all of the deceased’s property, such as a bank account and a safety deposit box.

A significant factor for the Judge was the fact that the document made no reference to the deceased’s death or suggest that the transfer of the condo to the deceased’s brother was intended to be triggered by her death. Although this fact can sometimes be inferred, in this case the language of the document did not support the inference that the applicant was to receive the condo upon the deceased’s death. The document was referred to as an “agreement”, it used the active voice when referencing the transfer and it stated that the applicant could sell the condo at any time. The plain and ordinary meaning of the words in the document did not tie the transfer of the condo to the deceased’s death.

The Judge concluded that without any corroboration of the deceased’s intention, the document could not be accepted as a valid holograph will. The applicant did not provide any other evidence besides his affidavit and an affidavit by his daughter-in-law, which the Judge did not accept as being independent of the applicant’s evidence. Therefore, the document could not be found as a valid holograph will.

Applicants seeking to prove handwritten notes as valid wills, must realize that not every note written by the deceased will be accepted as a valid will. Even if the deceased has mentioned that they want the note to be considered their will, there must be some independent evidence of their intention and merely an affidavit will not suffice.

Thank you for reading.

Mohena Singh