Can a holograph Will and the doctrine of incorporation by reference be used to validate an unsigned Will? Recently, the Ontario Superior Court of Justice had to tackle this issue in its decision, Lacroix Estate, 2021 ONSC 2919.
In this case, the testator was in hospital with the final stages of cancer, and had instructed her lawyer to draft up a Last Will and Testament. Once prepared, unfortunately, the testator’s counsel was not allowed to attend at the hospital to have the Will executed as a result of COVID-19 restrictions.
In efforts to have the Will executed under difficult circumstances, the testator was advised to prepare a handwritten note purporting to incorporate the draft Will by reference, such that the handwritten note together with the draft Will would constitute her Last Will and Testament. The Estate Trustee appointed under the draft Will subsequently attempted to apply for a Certificate of Appointment of Estate Trustee with a Will.
Ultimately, the Court dismissed the Application, finding that because the holograph Will did not independently make the disposition of property, it could not stand alone as a valid and duly executed testamentary document. In reaching this conclusion, the Court highlighted the following, regarding holograph Wills and the doctrine of incorporation by reference:
- Section 6 of the Succession Law Reform Act provides that a testator may make a valid Will wholly by his or her own handwriting and signature, without formality, and without presence, attestation or signature of a witness;
- The jurisprudence has established that to be valid, a holograph Will must be prepared with testamentary intent regarding the final disposal of the testator’s property upon death (Bennett v Toronto General Trusts Corp. [1958] SCR 392); and
- The doctrine of incorporation by reference allows a document entirely separate and apart from a Will to be considered part of a duly executed Will. However, this doctrine is only applicable where there is a valid Will into which the document may be incorporated.
While the document in question was wholly in the testator’s writing and expressed a fixed and final testamentary intention, the Court found that it did not stand alone as a valid testamentary document, as it did not independently make any disposition of property as required by Bennett v Toronto General Trusts Corp. The Court therefore distinguished this case, from others, such as Chamberlain Re, 1975 CarswellSask 82, where the holographic documents in question successfully incorporated by reference typed written documents, on the basis that the holographic documents themselves made dispositions of property, such that they were considered a duly executed Will.
To read Suzana-Popovic Montag and Raphael Leitz’s recent blog on Holographic Alterations and Extraordinary Gifts, see here.
Thanks for reading!