It is often a surprise to members of the public that holograph Wills – those which are entirely handwritten – are specifically allowed under Section 6 of the Succession Law Reform Act. While it is usually best that individuals make their Wills with a lawyer’s assistance, certain circumstances call out for the need for a last-minute testamentary instrument to be made. An example of this is the 1948 holograph Will of Cecil Harris, who famously carved his instructions into the fender of a tractor after being mortally wounded on his farm – a Will which was ultimately accepted by the Saskatchewan Court of King’s Bench.
Most holograph Wills are not so unusual. However, they are more often the target of litigation due to the circumstances of their execution. As valid holograph Wills are entirely handwritten, they do provide a different type of information for analysis than can be found in one drafted by a lawyer.
The parties who seek to propound or challenge such a Will often seek to scrutinize the handwriting itself, and if matches the handwriting of the Deceased person. When challenges to the validity of a holograph Will proceed towards a trial, it is common for the holograph Will to be examined by a forensic document examiner. This review provides a more empirical analysis of the document, using a variety of scientific techniques.
However, forensic analysis requires access to the document. So, what happens if the document has already been deposited with the Court for probate?
The answer is that while withdrawal is technically permitted, an Order of the Superior Court of Ontario will likely be required. Once the testator has died, and their Will is deposited with the registrar of the Superior Court of Ontario, Subsection 7 of Rule 74.02 of the Rules of Civil Procedure provides the following:
(7) After the death of the testator, the registrar may, on the filing of the following documents, deliver the will or codicil of the testator that is on deposit to an estate trustee named in the will or to such other person as the court may direct:
1. A request for the delivery, stating the testator’s date of birth.
2. Proof of death.
3. If no order directing delivery of the will or codicil has been made, an authorization signed by every estate trustee named in the will specifying the estate trustee as the person to whom the will or codicil is to be delivered.
4. If an order directing delivery of the will or codicil has been made, a copy of the order.
This language is permissive, and explicitly allows delivery of the Will to the requestor, provided that it is signed by every estate trustee named in the Will. However, where the validity of the Will is contested, it is likely that the registrar will exercise its discretion to retain the Will, on the basis that the document purportedly naming the estate trustee(s) is itself being challenged.
As noted in the 2006 Decision of the Saskatchewan Court of King’s Bench, Hamlin v. Fofonoff, circumstances of contention require courts to be conservative in their discretion, and accordingly, the withdrawal of a Will on deposit, even for forensic analysis required for trial, will itself require an Order of the Court.
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