It is surprisingly common that testators who seek to revisit an old Will do so by making handwritten notes in the margins—crossing out a beneficiary’s name, adding comments, or even writing the word “cancelled” across the page. These “marginalia” may reflect genuine changes in intention. But under Ontario law, are these handwritten notes actually an effective way of updating a Will?
The answer is that these notes are usually ineffective, and can even increase the likelihood of litigation.
Revocation – A Common Marginalia Scenario
One scenario where a Will has writing added to it after its execution is where the testator seeks to revoke it by way of the added language. Under Section 15 of the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”), there are a limited number of ways in which a will can be revoked, which include:
(b) Making another Will in accordance with the provisions of [Part I of the SLRA];
(c) in writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of [Part I of the SLRA]; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it.
The problem with handwritten notes on the face of a Will are several. First, it may be unclear who made the writing. It may be unclear as to the intended meaning of the writing – for example, does the word “cancelled” refer to a particular provision, or the entire document, as a wholesale revocation?
In any event, Section 18(1) of the SLRA provides that no alterations to a Will may be made unless it is accompanied by signatures of subscribing witnesses, and is otherwise in accordance with the provisions of Part I of the SLRA.
What About Crossing Something Out?
Similarly to the act of adding writing to a Will by hand, removing provisions by crossing them out by hand is, by a strict interpretation of the SLRA’s alteration provision, impermissible without compliance with Part I of the SLRA.
What this means is that even where a testator writes “revoked” across the front of a will, it remains possible that the document could still be probated unless there is proof that the testator intended to revoke it in accordance with section 15 and took the required steps to do so.
Even with Substantial Compliance: Update, Don’t Annotate
Especially in light of the relative flexibility that is now statutorily afforded to the Superior Court with respect to validating substantially compliant Wills (as well as amendments or revivals, as was done in the 2024 decision of Estate of Harold Franklin Campbell (Re)), handwritten amendments are even more uncertain in terms of their effect. For that reason alone, they should be avoided – uncertainty in the context of estate matters can result in future heartache and unnecessary for a testator’s loved ones. So instead of manually adjusting that Will yourself – seriously consider retaining the assistance of a lawyer.
Thanks for Reading!