Holograph Wills by definition are exclusively written in the handwriting of the testator and signed at the end. They do not require witnesses.
But does the inclusion of witnesses in any way change the character of the document? Is it no longer a holograph will and could it be set aside on such basis?
Well settled law would suggest the answer is “no” and the case on point is an oldie to be sure.
In Re Eames Estate 1934 CarswellMan 77, 919434] 3 W.W.R. 364, 42 Man. R. 474 the Manitoba King’s Bench considered a Holograph Will that had been witnessed and concluded that such fact did nothing to change its nature as a holograph will:
“In my opinion the presence of a witness or witnesses at the writing and signing of such a will by the testator and the signing of such witnesses does not make the testator’s will any
the less holographic. The signatures of witnesses should in such a case be regarded as only surplusage, something more than the law requires. I hold, therefore, in this case, though
the testator in his own act showed that he wished his will acknowledged in the presence of witnesses, and this was done,it did not cease to be holographic.”
Although the answer to the question given by the Court seems intuitive, section 10 of The Manitoba Wills Act, provides as follows: “A holograph will, wholly written and signed by the testator himself, shall be subject to no particular form, nor shall it require an
attesting witness or witnesses.” It can therefore be seen that, if the intention is to make a holograph will, it would likely not be witnessed (and indeed the vast majority of Holograph Wills are not witnessed).
For Ontario lawyers, the enquiry calls to mind the concern of the Court to determine the “fixed and final testamentary disposition” as required by any document tendered as a valid will under s. 21.1 of the Succession Law Reform Act. Once that is determined to be the case, a Will may be considered valid, regardless of a flawed observance of the formalities of due execution.
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