The Court of King’s Bench of Alberta has recently clarified the validity of a holograph will that contained both handwritten and typed text.  

In Baldwin v Van Hout, 2024 ABKB 220, the testator left two documents written in notebooks which could both be interpreted as testamentary in nature. One document was drafted in 2016, and the other in 2020. The Court had no difficulty in finding that the 2016 document was a valid will. It was a 16-page document with the words “Last Will and Testament of Arla K. Baldwin” on the cover. It was written entirely in the handwriting of the deceased and was witnessed by two individuals. 

In contrast to the 2016 document, the 2020 document was a series of notes written partially in the handwriting of the deceased and partially in the handwriting of an unknown person. It also contained a typed section containing an Agreement of Purchase and Sale. 

The Court held that the 2020 document was neither a valid will, nor could the entire document be considered a valid holograph will. It was not signed and witnessed in the presence of two witnesses, so it could not meet the requirements under s. 15 of Alberta’s Wills Succession Act. It was also not wholly in the handwriting of the deceased, therefore it could not be a valid holograph will.  

However, certain portions of the larger document were considered valid testamentary acts. For example, the testator wrote:

Robin, Aaron, Allen, Claire
I give ten acres to Claire from the old gas well to the east. Please help her sub divide this. Cost of survey coming out of money in Bank. This is on quarter with old gas well.

This page of the 20-page document was signed and dated by the testator entirely in the testator’s handwriting. The Court determined that this provision expressed a fixed and final intention that could be read harmoniously with the 2016 document. 

How would an Ontario court decide a case of this nature? Unlike in Alberta, the courts in Ontario can rely on section 21.1 of Ontario’s Succession Law Reform Act which allows a court to validate a document not properly executed under the Act so long as the document sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased. 

Section 21.1 could have allowed the court to validate the entirety of the 2020 document despite the fact that it did not meet the requirements of a holograph will. My colleague, Aaron Chan, wrote last year about Groskopf v. Rogers et al in which a fill-in-the-blanks style will was validated which would not have previously been a valid holograph will prior to the enactment of section 21.1. 

In light of section 21.1 of the SLRA, family members and named estate trustees should carefully review any documents created by the deceased that may now constitute valid wills. When in doubt, directions from the court may be necessary. 

Thanks for reading,

Mark Lahn.