A holograph will in Ontario, is a handwritten will that is signed by the author creating the will, also known as the testator, exempt from the need for witnesses.[1] However, what happens when a will is typed out on an electronic device, but not printed? In Haines v. Kuffner Estate, the Kings Bench for Saskatchewan determined whether the proposed will was a valid testamentary document despite it not being executed in complete compliance with the formal requirements of The Wills Act (the Act).
Before passing, Kim Kuffner (“Kim”), sent a message on her iPad to two of her siblings with the title “My holographic will” in which she named an executor and directions for her estate to be distributed. [2] This individual had no previous will and no spouse or children.[3]
The executrix applied to the court pursuant to s. 37 of The Wills Act (Act) to declare this electronic message as the deceased’s last will and testament. The applicant was seeking to apply for letters of probate in the estate. No one appeared in opposition in this case.[4]
On an application under s. 37, the onus is on the party seeking to have the document admitted to probate. The onus will be met by the applicant filing “substantial, complete and clear evidence” of the deceased’s testamentary intentions relative to the document in question.[5]
The singular question under s. 37 is whether a document is testamentary despite its non-compliance with the Act: There are two facets to this question:
- The first facet is whether the document is testamentary in nature. In other words, does the document disclose a true testamentary intention and
- The second facet is whether the document represents a deceased’s final wishes.[6]
This court found that Kim’s message directing how her estate was to be divided demonstrated that she intended the message on her iPad to be a will. The following statements support this:
1. Kim began her message with, “My holographic will”;
2. Kim named Rheanne Haines as the executor;
3. Kim left her house and contents to Ryan Haines and specified how her investments were to be divided between Ryan and Rheanne; and
4. Kim named Rheanne as her “pet guardian”.
As Kim’s intentions were clear and can be identified with sufficient clarity and certainty, her message was deemed to be the Last Will and Testament of the deceased, Kim Kuffner, pursuant to s. 37 of the Act.[7]
It is important to note that in Ontario a holograph will must be completely in handwriting. Had this case been considered in Ontario, the Applicant would have had to meet the criteria of section 21.1 of the Succession Law Reform Act, RSO 1990, c S.26 (“SLRA”).
[1] Succession Law Reform Act, RSO 1990, c S.26, s. 6.
[2] Haines v Kuffner Estate, 2024 SKKB 51 (CanLII).
[3] Ibid.
[4] Ibid at para 2.
[5] Ibid at para 19.
[6] Ibid at para 25-26.
[7] Ibid at para 37.