Holograph Wills hold a special fascination in estates practice, in large part because the circumstances of their creation is either dramatic or tragic (like a will scratched into a tractor) or simply mysterious.

The first step in any enquiry into the validity of a Holograph Will is satisfying the Court that the handwriting is that of the Deceased (i.e. it is authentic).

This was the issue before the Court in a decision of the Toronto Estates List released yesterday: Denzin et al. v Jenkins et al.

In this case, the Deceased left a typewritten will made in 2006 and purportedly left two handwritten testamentary documents dated 2016 and 2017. When the executor named in the typewritten will tendered all three documents as part of her application for probate, the Court office rejected the application and directed her to bring an application for advice and direction on the validity of the typewritten will and the applicability of the two handwritten documents.

The party who benefitted under the 2017 handwritten document opposed a motion brought by the beneficiaries under the Will and the first handwritten note to compel the production of additional handwriting samples of the deceased.

Justice Dietrich ordered production of the handwriting samples for five reasons:

1. Numerous samples of the testator’s handwriting and signature form an appropriate evidentiary record when proving a Holograph Will, even where authenticity is not disputed;
2. Expert evidence may be considered in confirming authenticity of handwriting, and numerous samples of handwriting are invaluable to a forensic document examiner;
3. The executor named in the Will who had provided evidence as to authenticity had since died, was not neutral, and had only tendered three handwriting samples;
4. There were numerous discrepancies on the 2017 note such as the appearance of the handwriting and the ink that “raised questions about its validity”; and
5. There is no prejudice to any of the beneficiaries in maximizing the evidentiary record on the issue of the authenticity of the handwriting.

Thanks for reading,

David Morgan Smith