People change their mind all of the time. When someone changes their mind about the terms of their Will however, things can become more complicated. Going to a lawyer to formally make a change to the Will may seem daunting. If the change to the Will is relatively minor, an individual may be tempted to forgo meeting with a lawyer to draw up a new Will or Codicil, and simply make the change to the Will themselves by crossing out or inserting new language by hand on the face of the old Will. But would such handwritten changes be valid?
Although the advice to any individual thinking of changing their Will would always be to speak with a lawyer about the matter, people do not always adhere to such advice. If someone has made handwritten changes to their Will after the document was originally signed, such changes can under certain circumstances alter the terms of the Will.
Section 18(1) of the Succession Law Reform Act (the “SLRA“) provides that unless any alteration to a Will is made in accordance with the requirements of section 18(2) of the SLRA, such alterations have no effect upon the provisions of the Will itself unless such an alteration has had the effect that you can no longer read the original wording of the Will. Section 18(2) of the SLRA further provides:
“An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,
(a) in the margin or in some other part of the will opposite or near to the alteration; or
(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.”
As a result of section 18(1) and 18(2) of the SLRA, any handwritten change to a Will does not validly alter the terms of the Will unless the testator and two witnesses sign in the margins of the Will near the alteration (subject to certain exceptions listed). If the handwritten change is not accompanied by such signatures it is not a valid alteration and has no impact upon the original terms of the Will, unless the handwritten change has had the effect of “obliterating” the original language of the Will by making it no longer readable.
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It is not uncommon for a testator to want to make amendments to his or her Will once it has been executed. Typically, the safest way to make changes to a Will is to have a solicitor draw up a Codicil to be added to the executed Will or to make a new Will all together. However, what happens when a testator makes handwritten changes to their original executed Will?
Section 18 of the Succession Law Reform Act (the “SLRA”) governs the validity of alterations made after a Will has been executed. To be valid, the alterations must be accompanied by not only the signature of the testator but also the subscription of at least two witnesses. Alternatively, a testator may make valid alterations to his or her Will if the Will meets the formalities of a holographic Will i.e. it is made wholly in the testator’s own handwriting and is signed by the testator. The statutory requirements for a valid alteration must be strictly adhered to.
In addition to compliance with the SLRA, there are common law requirements with respect to the manner in which the original wording must be deleted. Therefore, it is not advisable for a testator to attempt to make handwritten alterations to their executed Will, without first receiving advice from a solicitor.
While the execution of a new Will or Codicil is the surest way of ensuring that any desired amendments will be honoured upon the testator’s death, it may not always be practical. Accordingly, practitioners may want to review with the testator the appropriate requirements for altering their already executed Will. It is important to remember, however, that issues of testamentary capacity and undue influence are separate issues that ought to be considered as well.
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The formalities in the Succession Law Reform Act are strict and unforgiving. Case law suggests that Ontario courts have no discretion to depart from compliance with the SLRA’s requirements in determining the due execution and formal validity of a Will and its provisions.
Handwritten alterations made subsequent to the formal execution of a Will are valid in only two situations:
1. If the alterations are signed by testator in the presence of two subscribing witnesses who also sign near the changes or sign at the end of a memorandum elsewhere in the Will that refers to the changes (s. 18(2) SLRA); OR
2. If the alterations constitute a valid Holograph Will or Codicil i.e. they must be wholly in the testator’s handwriting and must be signed by the Testator (s. 6 SLRA).
In order to be a valid Holograph Codicil the markings on the Will must:
• Be capable of standing on their own without reference to the printed text around them; AND
• Indicate a firm testamentary intent.
Any changes that completely obliterate portions of the Will, such that the provisions cannot be discerned from an inspection on the face of the document without resort to artificial means or extrinsic evidence, will be effective to remove said portions from the Will.
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Amending or altering a formal, attested will can be a difficult task. Such amendments may not be accepted by the Court, despite what may be the clear intentions of the testator.
The recent Ontario decision of CIBC Trust Corp. v. Horn is illustrative of the principles involved. There, the testator executed a formal, typed will. After execution, the testator made substantial handwritten changes to a number of bequests. The changes were not dated or signed. In addition, she added three unnumbered paragraphs to the will.
The court noted that any alteration to a will must be made in accordance with the formal requirements of the Succession Law Reform Act, unless the alteration renders part of the will completely obliterated. Alterations to a formal will must be signed and attested and signed by two witnesses.
Alternatively, it is possible to make a holograph codicil to a formal will. However, this too requires compliance with the requirements of the Succession Law Reform Act. For a holograph will or codicil, it must be signed “at, after, following, under or beside or opposite the end of the will”. In this case, the handwritten changes were not signed at all.
In conclusion, the court found that none of the additions or deletions could be given effect, and the Estate Trustee was directed to administer the estate in accordance with the typewritten will, and without considering any of the handwritten changes or additions.
Practitioners may want to advise clients of the requirements for amending or altering provisions in a will. Otherwise, a testator’s intentions may not be truly reflected in the will document that he or she leaves.
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