Holograph Wills and “homemade” or “will kit” wills disproportionately give rise to estate litigation. In the absence of the evidentiary protection often (but not always) afforded by a lawyer’s office, such wills may be vulnerable to a challenge.

Such was the case in Anderson v. Anderson Estate, 2024 ONSC 7118. Here, the deceased, Betty, who had drawn up a formal will in 2012, expressed her wishes to equally benefit her four children. But a handwritten document dated “Jan 5/16” surfaced after her death, leaving her home and its contents solely to one daughter, Wendy:

“I leave the house at 84 Gavey Street to Wendy Anderson and all contents”

The document was entirely in Betty’s handwriting and signed by her at the end.

Medical records showed moderately severe mixed dementia, with symptoms that included anxiety, depression, and even episodes of confusion—raising serious doubts about her ability to make clear, informed decisions regarding her estate. An expert report of retrospective assessment of testamentary capacity suggested that these mental challenges could have impaired her capacity to understand the consequences of changing her will.

The Court observed the following suspicious circumstances (i) the handwritten note wasn’t mentioned until after Betty’s death. There was no record of her discussing or even acknowledging its existence before she passed, (ii) family members recalled Betty denying any intention to favour one child over the others, and there was evidence of ongoing disputes among the siblings about her estate, (iii)there were no witnesses to the note’s creation, no clear explanation of its origins, and no contemporaneous evidence to support Wendy’s account.

With all these red flags, the court had to decide whether this handwritten document could really stand as a valid holograph will.

After weighing the evidence, the court dismissed Wendy’s bid to validate the handwritten will. The decision rested on the requirement that Wendy prove her mother had both the capacity and a clear intent when drafting the document—a burden that was not met amid conflicting family accounts, a dearth of corroborating evidence, and serious concerns about Betty’s cognitive state.

Thanks for reading.

Tiansheng Wen and David Morgan Smith