Tag: holograph will
I previously wrote about the upcoming changes to the Succession Law Reform Act, introducing a substantial compliance regime to the law of will drafting in Ontario. As of January 1, 2022, the new Section 21.1 of the SLRA will allow for a broader interpretation of the validity of wills drafted by a testator, if they are otherwise improperly executed, but sufficiently demonstrate the “testamentary intentions of a deceased.”
The result of this change in legislation could be the admission of diary entries or even loose-leaf documents as valid testamentary documents. I could even imagine a future where a Word document saved on a testator’s laptop or cloud server could qualify as a valid will, if no better document could be found.
The February 2020 Dalla Lana decision in Alberta is illustrative. Alberta already has a substantial compliance regime – as do many other provinces – and cases such as this could be relevant to resolving disputes in Ontario, after January 1, 2022.
In Dalla Lana, the deceased wrote changes to his previous will on two sticky notes, only four days before he died. He had previously executed a formal will in 1997, but his sticky notes of March 2018 were deemed to be not only valid changes to his will, but a complete and valid rewriting of his will.
The factors considered by the Judge in his decision included:
1) The testator was old enough (over 17) to make a will;
2) The testator had testamentary capacity;
3) The holograph will was “in writing”;
4) The holograph will featured his signature;
5) His signature indicated his “intention to give effect to the writing in the document as the testator’s will.”
It will be interesting to see if similar cases soon appear in Ontario, as substantial compliance takes effect in the New Year.
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I recently attended a replay of a Continuing Professional Development webinar, hosted by Ms. Lisa Toner and our own Mr. Ian Hull, in which a number of estates lawyers had the opportunity to give six-minute presentations on select, relevant subjects in estates law in 2021.
A presentation on holograph wills by Ms. Clare Burns particularly caught my attention.
Normally, when drafting a will, strict formalities are required, including the signatures of two or more witnesses. The one major exception in Ontario is the “holograph” will – a will written and signed entirely in the testator’s own handwriting.
However, as of January 1, 2022, a new section added to the Succession Law Reform Act, namely Section 21.1, will allow courts to order validation of an improperly executed document if it “sets out the testamentary intentions of a deceased.” The previous passing of similar “substantial compliance” legislation in other provinces has resulted in attempts to probate documents such as diary entries (B.C.), memoranda of an accountant (Manitoba), and sticky notes (Alberta) as testamentary documents, to varying degrees of success.
Ms. Burns suggests that Ontario will likely follow the lead of the British Columbia Court of Appeal in applying this new legislation. In the landmark decision of Re: Hadley Estate, the B.C. Court of Appeal applied the following two-part test: 1) is the document authentic?; and 2) if it is authentic, but not compliant with the formalities for holograph wills, does it represent the deceased’s intentions at the time that document was created? The Court also added that any valid document should have been drafted with the knowledge and consent of the deceased, if it was not in their own handwriting.
Furthermore, certain factors will support the finding of testamentary intention, including: if it was signed by the deceased, if there are witness signatures, if there are references to the revocation of previous wills, if executors are named, and if there are specific bequests. Conversely, there are facts that will weigh against a finding of testamentary intention, including: if written in pencil, if a document is incomplete, if using a pre-printed will form, and if a person has a previous formal will.
Nonetheless, it remains to be seen how this legislation will play out in litigation with the courts in Ontario.
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We have blogged previously on whether a suicide note could be found to be a valid holograph will. See Suzana Popovic-Montag’s blog “Testamentary Capacity and Suicide”. Also see my paper on the subject, “Suicide, Suicide Notes and Testamentary Capacity”.
The courts have held that a suicide note can be considered to be a valid holograph will. However, the usual tests of establishing that the note demonstrates sufficient testamentary intent, and the requirement that the propounder establishes capacity remain. The fact that there was a suicide is a consideration but is not conclusive evidence of incapacity.
The court recently considered whether a suicide note was a will in McGrath v. Joy, 2020 ONSC 7454 (CanLII). There, the deceased took his own life after writing a note that purported to void any bequests to his spouse as contained in a prior will.
In considering whether the note was a valid holograph will, the court noted that a suicide note is a “special circumstance” that requires close scrutiny. In light of evidence relating to the deceased’s alcohol and drug use on the day in question, the court found that there were “suspicious circumstances” that “spent” the presumption of capacity and reshifted the legal burden of establishing testamentary back onto the propounder.
The court considered extensive evidence from the deceased’s family and friends about the deceased’s alcohol and drug use, including evidence about his condition on the day of his suicide. The propounder relied on an expert opinion. However, the opinion was inconclusive. The court also looked at the content of the note itself. It was sloppily written. It was a significant departure from formal wills previously made by the deceased.
The court concluded that the propounder had not met the burden of establishing on a balance of probabilities that the deceased had testamentary capacity.
In the costs decision, the judge cited the “modern costs rules with respect to estates” and the general proposition that the “loser pays” that applies to estate litigation. The court held that the propounder “acted unreasonably in attempting to have this suicide note admitted into probate as a holograph will” for a number of reasons, including the fact that he was not acting as an estate trustee seeking the guidance of the court but, rather, was pursuing his self-interest in an attempt to oust the legacies to others, and the fact that his own expert was not able to opine on the deceased’s testamentary capacity. However, the estate also bore some responsibility for costs due to the deceased’s own actions in preparing the note. A blended costs award was made whereby the propounder bore some of the costs and the estate bore the rest.
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A recent CBC article demonstrates the importance of having a testator regularly review, or at least consider, their current estate plan to ensure that it conforms to their testamentary intentions, and the potential pitfalls of failing to do so or of failing to seek legal advice.
Eleena Murray, of Vancouver, British Columbia, died leaving a Last Will and Testament dated sometime in 2003. The Will provided cash legacies to various relatives, totaling approximately $440,000, and left the residue of Eleena’s estate to a charitable organization, the SPCA.
Although it is not clear, at the time the Will was drawn, it appears as if the residue of the Estate would have largely consisted of her interest in her house, situated in the Point Grey neighbourhood of Vancouver. Presumably, although it is unclear, the total value of all of the cash legacies was likely close to the fair market value of the house, such that Eleena intended to divide her estate roughly equally between the legatees and the charity.
However, in the years since the Will was drawn, the real estate market in Vancouver saw massive growth, with property values rising significantly, and the value of the residue of Eleena’s estate along with them. In 2017, perhaps recognizing what had become a considerable discrepancy between the values of the cash legacies and the value of the house, Eleena apparently drafted a handwritten note containing, among other instructions, an intention to limit the SPCA’s interest in her estate to a flat bequest of $100,000.
It is unclear whether the note was signed by Eleena or subscribed to by attesting witnesses (although two witnesses swore affidavits attesting to the fact that the note was prepared by Eleena). Eleena died only months later, without having amended her Will to reflect her purported intentions by way of the note. Although the value of the house, and therefore the residue of the Estate, increased significantly, Eleena never formally amended her estate plan.
Litigation has since ensued, with Eleena’s family members asserting that the handwritten note is a testamentary document that accurately represents her intentions.
Were this litigation taking place in Ontario, a court might find that the handwritten note would constitute a holograph will, assuming it was signed by Eleena. A holograph will is a will that is made entirely in the handwriting of the testator and signed by them, without the need for attesting witnesses.
In British Columbia, the analysis is slightly more nuanced. There is no equivalent provision under BC legislation that specifically recognizes the validity of holograph wills, as the Succession Law Reform Act does in Ontario. That said, British Columbia’s Wills, Estates and Succession Act empowers a court to make an order that a record purporting to be a will if the court is satisfied that the document represents,
- The testamentary intentions of a deceased person;
- The intention of a deceased person to revoke, alter, or revive a will; or
- The intention of a deceased person to revoke, alter, or revive a testamentary disposition in a document other than a will.
The court is equally empowered to make an order that a will that is not made in conformity with the applicable legislation is equally as effective as if it had been.
In the case at hand, the prevailing question will likely be whether the court is satisfied that the handwritten note accurately represents Eleena’s testamentary intentions. If so, the subsequent issue to be considered is whether the balance of the Estate that is not dealt with pursuant to the note passes by way of an intestacy, but that is a topic for another day.
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The University of Saskatchewan’s College of Law proudly displays the will that was etched onto the fender of a tractor by a dying farmer. That happened in 1948. Decades later, the Saskatchewan Queens Bench was similarly asked to determine whether a note handwritten on a McDonald’s napkin is a valid will.
Philip Langan died in 2015. He was a widower with eight children (Earl was predeceased and Landry died after the napkin was written but before Langan’s death). Shortly after Langan’s death, two of his children came forward with a McDonald’s napkin that they claim to be their father’s last will and testament. Ronald and Sharon explained that the napkin was made when their father thought he was having a heart attack at McDonald’s. Sharon said that she was not there when her father started to write on the napkin but she was there to see him sign his name. She said he gave the napkin to her and said “This is my will. I want you to keep this in case something happens”. A third child, Philip, supported the validity of the will because he was also at the McDonald’s that day. Like Sharon, Philip did not see his father write on the napkin but he was there when the napkin was given to Sharon and he heard what his father said to Sharon.
Maryann challenged the validity of the napkin because she was skeptical of whether it was in her father’s handwriting. She also stated that Langan told her that he would not leave a will because “he wanted us to fight like he had to”. Yet, interestingly enough, an intestacy would still give rise to the same result as the napkin on the consent of the siblings.
The napkin itself was described as follows in Gust v. Langan, 2020 SKQB 42 (CanLII):
“written in pen on a very thin, brown-coloured, paper restaurant napkin reads as follows:
Philip W. Langan
Marann Langan (Gust)
Split my property evenly,
“Dad Philip Langan”
The court found that the napkin was a valid holograph will. Justice Layh was persuaded by the propounders’ explanation that the napkin was made at a time when Langan thought he was having a heart attack “a time when one’s mind would reasonably turn to the question of estate planning, especially in the absence of an existing will. Mr. Langan’s immediate delivery of the will to his daughter, Sharon, and the comment he made to her – as evidenced by both Sharon and Philip’s statements – that she keep the document in case something happened to him, shows a clear testamentary intention.” (para. 22).
While the legal analysis in this case is based on the law in Saskatchewan (unlike Ontario, Saskatchewan has curative legislation that permits substantial compliance), Gust v. Langan is a timely reminder that, in addition to the formal requirements of a holograph will, testamentary intent is crucial in determining whether a document can be given effect as a will. On the face of the napkin, there was nothing to indicate when Langan intended to divide his property. The essential characteristic of a will is the intention to dispose of property after one’s death. Here, the court had to rely on the extrinsic of evidence from Langan’s state of mind and what he said to Sharon.
Should you find yourself in a situation where an emergency holograph will is needed, you may want to refer to Ian Hull and Jordan Atin’s blog on the subject:
I would also suggest that regular paper be used, if you have some, for practical reasons or to simply avoid media coverage since this particular McDonald’s napkin has made the news in New York and Australia.
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In Kirst Estate (Re), the Court of Queen’s Bench of Alberta had before it an interpretation case involving a holograph will of William Kirst (“K”). The will was a short handwritten document that divided the estate equally amongst K’s surviving children, with some qualifying language allowing Whitehorn (“W”), one of K’s children, to live in the family home. W had almost always lived in the home, which was the primary estate asset.
The phrase the Court was tasked with interpreting reads: “Whitehorn can live in the house for awhile, to be determined by Him and his brothers + sisters.”
The sole issue was the interpretation of the words “for awhile”.
The testimony of four of K’s children was considered (although ultimately of little assistance), with two of them believing K’s intention was that W remain in the house indefinitely, and the other two viewing their father’s intention as simply to permit W to stay in the home until he could get his affairs in order. As K discussed his estate with his children separately, each of them had his/her own understanding of K’s intentions. Notably, although K made the will in 1995, none of the kids had previously known about it or discussed its terms with K.
The Court cited and reviewed the following four general principles of interpretation recently set out by the Alberta Court of Appeal to assist in ascertaining K’s intention:
“First, a will must be interpreted to give effect to the intention of the testator. No other principle is more important than this one.
Second, a court must read the entire will, just the same way an adjudicator interpreting a contract or a statute must read the whole contract or statute.
Third, a court must assume that the testator intended the words in the will to have their ordinary meaning in the absence of a compelling reason not to do so.
Fourth, a court may canvas extrinsic evidence to ascertain the testator’s intention.”
The Court concluded that it could determine K’s intention by giving the words in his will their natural and ordinary meaning, and, in so doing, it was satisfied that the intention was to allow W to stay in the home subject to an enforceable condition that he and his siblings agree on how long he can continue to live there. The Court further found that as the siblings could not agree, the condition had not been fulfilled, such that W’s entitlement has ended.
The circumstances in this case are unfortunate, as the siblings had apparently been involved in protracted litigation since K’s death in 2010, including a dispute over the validity of the will. Although holograph wills can be helpful estate planning tools, I wonder if these same contentious circumstances would have developed if K had made his will with effective legal advice.
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In the recent decision of Fitzpatrick v Ollenberger, the Saskatchewan Court of Appeal considered intentional revocation of a will and the presumption of destruction animo revocandi.
The testator, Bobby, was a farmer who was largely estranged from his family. On the other hand, he had a close family-like relationship with his neighbours, the Fitzpatricks. In August 2006, Bobby executed a will, leaving his estate to various members of the Fitzpatrick family. The original will remained at his lawyer’s office and Bobby kept a copy.
In August 2007, Bobby wrote a letter to his lawyer, which included a handwritten note:
Will & power of attorney to be cancelled
The lawyer responded to Bobby’s letter, advising him he would need to take further steps to revoke his will and power of attorney and asking whether he would like to receive the original documents. Bobby did not immediately respond to his lawyer’s letter. The lawyer sent another letter to Bobby, asking whether he would like to receive the original will and power of attorney. Bobby then sent back an undated handwritten note:
Scrap the whole thing, all this has been changed as of a while back.
Thank you, much.
The lawyer remained uncertain about his instructions and sent Bobby several further letters asking if he would like to receive the original will and power of attorney in order to destroy them.
In December 2008, Bobby returned a handwritten note to his lawyer, stating:
That will be fine if would return the documents to me.
Thank you very much!
The lawyer then returned the will and power of attorney to Bobby in January 2009 by regular mail. Bobby died in October 2013. His original will could not be found after his death.
Revocation by holograph instrument
Section 16 of Saskatchewan’s Wills Act states:
16 No will or any part of a will is revoked other than:
(c) by some writing declaring an intention to revoke the will or part of the will and executed in accordance with this Act; or
(d) by burning, tearing or otherwise destroying the will or part of the will 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 Court noted that there is nothing in the act that suggests a holographic testamentary instrument could not effectively revoke a formally executed document. The Court therefore considered whether the notes to his lawyer constituted a holograph instrument.
Unlike Ontario, Saskatchewan’s legislation has a substantial compliance provision, which gives the court discretion to order that a written document embodying testamentary intention or intention to revoke a will is effective, notwithstanding that it was not executed in compliance with the formal requirements of the Wills Act. The Court also emphasized that under Saskatchewan law: “the intention of the testator, not the form of the testamentary document, is paramount. A holograph instrument may dictate the disposition of the testator’s property if it manifests the deliberate and final intentions of the testator and the words used convey this intention with sufficient clarity to allow the court to interpret it with some certainty.” The Court of Appeal upheld the trial judge’s factual finding that the handwritten notes displayed a final and deliberate intention to revoke his will.
Presumption of destruction
As in Ontario, there is a presumption that when a will was last in the custody of the testator and cannot be found after his or her death, the testator destroyed the will with intention of destroying it. This presumption may be rebutted by the facts on a balance of probabilities. The Court of Appeal upheld the trial judge’s finding that the will was last in Bobby’s possession and there was no evidence to rebut the presumption of destruction.
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As many people are aware, the Succession Law Reform Act, R.S.O. 1990, c. S.26 (the “SLRA”) governs the formalities with which Wills, both formal and holograph, must be executed. The SLRA also governs the necessary formalities for making alterations to a Will after it has been executed. Section 18 states as follows:
18. (1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Part governing making of the will, the alteration has no effect except to invalidate words or the effect of the will that it renders no longer apparent.
(2) 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.
The rules for alterations essentially parallel the rules for execution of the Will itself. If the original Will was a formally executed Will, any alterations also require the signature of the testator along with attestation by two witnesses, while an alteration to a holograph Will, need only include the testator’s signature. Section 18 also includes an exception if the alteration renders the words “no longer apparent”. Case law has held that this term means that the words have been completely obliterated such that they can no longer be read using natural means.
With respect to alterations to holograph Wills, it can often be difficult to determine when an alteration was made, as the entire document consists of the testator’s handwriting. For example, if a holograph Will contains a clause that reads as follows:
To my daughter Mary Jane, I leave my pearl necklace.
There are a number of possible scenarios whereby this clause may have come to be, as follows:
- The testator inadvertently wrote “Mary” when they meant to write “Jane” and immediately corrected it;
- The testator initially wanted to leave the necklace to Mary, but upon further consideration, and prior to execution of the Will, decided to leave it to Jane instead. At that point they crossed out “Mary”, wrote “Jane”, and subsequently signed the holograph Will; or
- The testator fully wrote out and signed the holograph will and later decided to change the bequest to Jane.
While the first two scenarios would theoretically be valid as the revisions were made prior to execution, the third would not be valid as it does not include the testator’s signature, and accordingly does not comply with the requirements in s. 18 of the SLRA. However, the issue in this situation is that the testator will most likely not be around to assist with the interpretation when it becomes necessary to determine whether Mary or Jane are entitled to the necklace. Even if one of the first two scenarios is true, there is no way to tell when the alteration was made. Based on the SLRA, the alteration would likely be found invalid, and Mary would be entitled to the necklace.
Unfortunately, in Ontario, strict compliance with the provisions of the SLRA does not leave much flexibility for the Court to uphold what it views as the testator’s true intention, unless the Will, or alteration to the Will, has been executed according to the rules in the SLRA. There are many arguments in favour of, and against maintaining the strict compliance regime, and you can read more about the issue in our previous blog here.
This can be problematic, as many testators who make holograph Wills are doing so without the assistance or advice of a lawyer. Accordingly, they are likely not familiar with the formalities required for alterations, leading to circumstances that can easily result in an interpretation of the holograph Will that may not necessarily be as the testator intended.
Thanks for reading and have a great weekend!
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