Tag: Holograph Wills
A recent decision out of Alberta on holograph wills is interesting. The Alberta Court of Queen’s Bench decision released on February 20, 2020 in Edmonton in the Estate of Dalla Lana, 2020 ABQB 135 starts with the following :
“Mr. Dalla Lana made a will in 1997. On March 1, 2018 (four days before he died) and via notes made on two sticky notes, he made what he described as “changes to my earlier will”. The “changes” if valid, effectively rewrote the entire will.”
The decision then goes on to find that the “two sticky notes” were a valid will. This was one more decision in a long line of cases (in substantial compliance jurisdictions, unlike Ontario) with wills being upheld when written on everything from napkins to tractor fenders.
If a valid will can be done on a sticky note, one should ask is there any reason now why an electronic will could not be done on an iPad or smartphone?
Pandemic emergency Orders in Ontario have recently accepted wills being signed and witnessed by video conference or by counterpart. However, there is still a requirement for a “hard copy” of the will. A purely electronic will with a digital signature is still not permissible.
Some jurisdictions have already allowed electronic wills into probate. In Australia, the High Court of Queensland gave probate to a will in 2013 contained in the iPad of the deceased, in Yu Estate 2013 QSC 322.
Although digital electronic signatures have been allowed in Ontario for use in some business situations for many years, there are some restrictions on doing electronic will signatures which are found in the Electronic Commerce Act, 2000, SO 2000, c 17,
31 (1) This Act does not apply to the following documents:
- Wills and codicils.
- Trusts created by wills or codicils.
- Powers of attorney, to the extent that they are in respect of an individual’s financial affairs or personal care.
Given the emergency statutory provisions triggered by the pandemic, it seems inevitable that a meaningful debate will soon ensue about the merits of electronic wills and the broader question of whether Ontario should adopt substantial compliance in its estates legislation.
Thanks for reading.
Please enjoy these blogs on the subject:
“The Adventure of the Norwood Builder” begins when Holmes and his companion, Watson, are visited by a Mr. MacFarlane, a “wild-eyed and frantic” young man who has been pursued by the police and charged with the murder of Mr. Oldacre, an eccentric and reclusive bachelor. Mr. MacFarlane swears upon his innocence, but his situation is forlorn, as Mr. Oldacre, on the day he was allegedly murdered, prepared a holograph Will in which he gave everything to Mr. MacFarlane.
Upon inspection of the holograph Will, Holmes deduces that it was written on a train, since there are some sentences that are clear and discernible, and others which are illegible – “the good writing represents stations, the bad writing movement”. According to Holmes, this corroborates Mr. MacFarlane’s credibility:
“It is curious – is it not? – that a man should draw up so important a document in so haphazard a fashion. It suggests that he did not think it was going to be of much practical importance.”
Holmes becomes more suspicious of the official narrative when he discovers, amongst other things, that prior to his death, Mr. Oldacre transferred his assets to a mysterious unknown, Mr. Cornelius.
In estate litigation in Ontario, it is common practice for litigants to employ handwriting experts to investigate the authenticity of documents and signatures, but they, likely cautious and mindful of their professional reputations, may be less inclined to make such momentous and bold inferences. In cracking the case (spoiler alert!), Holmes certainly employs measures that go far beyond those available to present-day estate litigators, experts, investigators, and the authorities.
Working with some suggestive facts – such as that Mr. Oldacre executed his Will sloppily and that he transferred his wealth to one party while designating another party as his estate beneficiary – Sherlock Holmes deduces that Mr. Oldacre has faked his own death, framed Mr. MacFarlane, and transferred his wealth to the fictitious Mr. Cornelius, who is in fact himself, in order to defraud his creditors. In an effort to vindicate his theory and save Mr. MacFarlane, Holmes invites the police into Mr. Oldacre’s home, instructs Watson to put a match to some straw, and then, when there is a blaze and smoke billowing within the house, Holmes has the police yell “fire”:
“A door suddenly flew open out of what appeared to be solid wall at the end of the corridor, and a little, wizened man darted out of it, like a rabbit out of its burrow. ‘Capital!’ said Holmes, calmly. ‘Watson, a bucket of water over the straw … allow me to present you with your principal missing witness, Mr. Jonas Oldacre.’”
These types of truth-finding artifices, though extreme and unorthodox, are within the purview of the unofficial detective. Estate litigators, on the other hand, operate under the stricter ambit of the Law Society of Ontario, which would likely frown upon such irregular practices.
Thank you for reading – have a great day,
Suzana Popovic-Montag & Devin McMurtry
Over the past few blogs, we discussed alternates for having Clients sign Wills when we can’t meet with them in person.
One of the options was to have client sign holograph Wills. While that may work with more straightforward instructions, it won’t be practical where testamentary trusts are necessary.
In today’s blog, we will focus on an alternate option – “incorporation by reference” of an unsigned “Will” into a holograph Will.
The terms of one document (“the Incorporated Document”) can be included in another document without repeating all of it provisions. This is known as “incorporation by reference”. In order to incorporate the terms of the Incorporated Document into a Will, there are four well established requirements:
- The Incorporated Document must be referred to in the Will;
- The reference in the Will to the Incorporated Document must be sufficient to identify the Incorporated Document; and
- The Incorporated Document must be in existence at the time the Will is signed. It cannot come into existence at a future date.
- The Incorporated Document must be “entirely separate and apart” from the Will.
The most common examples of incorporation by reference in a Will are a binding memorandum regarding the disposition of Personal Effects and a trust company’s compensation agreement.
Rather than just a list of personal effects or compensation agreement, can the Client incorporate an entire unsigned Will by reference?
Where a testator in a duly executed will or codicil refers to an unattested written paper (whether of a testamentary form or character or not), as a written paper then in existence in such terms that it may be ascertained, the paper so referred to becomes part of his will, in other words, is incorporated therein; provided always that the paper referred to is actually in existence at the time of the execution of the will or codicil. Probate Practice and Re Warren (1930), 38 O.W.N. 358 (Ont. H.C.),
This concept was not disputed in Re Coate Estate, (1987) 26 E.T.R. 161, although the facts in that case did not lead to a finding of incorporation by reference.
Similarly, in Re Dixon-Marsden Estate (1985), 21 E.T.R. 216 (Ont. Surr. Ct.), the Court found that the particular handwriting did not qualify as a holograph document. Nevertheless, Judge Misener seemed to endorse the use of a holograph document incorporating the terms of a formal, but unexecuted Will. In that case, a typed Will on a single piece of paper was not properly signed with two witnesses. However, at the bottom of the page the testator wrote, in his own hand, “The above-mentioned are in short those to whom my estate is left” and below that he signed his name.
“I have always understood that the doctrine of incorporation by reference contemplates the existence of a testamentary document that qualifies for probate, independent of the document sought to be incorporated. If that is so, the condition precedent to the argument that a typewritten document is incorporated is the tendering of a document wholly in the handwriting of the testator and bearing his signature that can be admitted to probate all by itself. Therefore, on the facts of this case, the handwritten words ‘the above-mentioned are in short those to whom my estate is left’ must be capable of admission to probate.”
In that case, the handwritten portion could not be separated from the typed portion and so did not satisfy the requirement that the two documents be “entirely separate”.
In Re Chamberlain Estate, the deceased enclosed two documents in an envelope:
- A printed Will form, which the deceased signed but was not witnessed.
- A single sheet of paper wholly in the handwriting of the deceased which listed several of the deceased’s assets. The deceased wrote his name at the bottom of the sheet.
The issue before the court was whether the documents could be read together as a valid Will.
Justice Maher emphasized that although documents referred to in a testator’s Will or codicil may not be duly executed in accordance with The Wills Act, they may nonetheless be incorporated in the Will.
Justice Maher found that the document written wholly in the handwriting of the testator was a valid holograph Will and it met the conditions outlined above. Although the documents were not completed at the same time, the incorporation by reference doctrine still applied as they were testamentary in nature and wholly in the handwriting of the deceased.
The second document being testamentary in character and wholly in the handwriting of the deceased is a valid holograph will and it has been held that the doctrine of incorporation by reference applies to holograph wills: Re Long Estate,  1 All E.R. 435.
Based on these authorities, it appears that a holograph Will could incorporate the terms of a non-executed formal Will as long as the 4 conditions were properly met.
However, there is an outlier Ontario case that is problematic- Facey v. Smith (1997), 17 E.T.R. (2d) 72 (Ont. Gen. Div.).
In Facey, the court was faced with an unseemly fact scenario. The deceased was murdered by her husband who later, on the same day, committed suicide. The issue was whether certain writings made by the deceased were holograph Wills and if so, did thy properly incorporate the terms of a formal Will by reference.
The court found that a holograph documents did not qualify as a Will because it did “not show a fixed final intention as to disposition on death”. However, in obiter, the Court said the following:
“I have no difficulty with the doctrine of incorporation by reference applying when the Will into which type written words are to be incorporated is itself a witnessed Will. When those type written words are declared incorporated, the statutory requirement of the testator’s signature duly witnessed is wholly satisfied. In the case of a holograph Will, however, incorporation of typewritten words does not meet the statutory requirement. That requirement is that the holograph Will, to be valid, must be “wholly by his own handwriting and signature” and patently the incorporated typewritten words are not in the testator’s handwriting. The doctrine of incorporation by reference was developed to relieve against the harshness of the Wills Act and to give effect to the intentions of a testator. I am not satisfied that the law in Ontario is or should be that typewritten documents can be incorporated into a holograph Will. The purpose of requiring certain formalities in the making of Wills is to prevent fraud and no fraud is here alleged. Although not formally required, my answer to question two is “no”.
If you decide to recommend this strategy, here are a few suggestions:
- Have the formal Will identified as “Schedule A”;
- Ensure that the Holograph document qualifies as a valid Will, both in terms of execution and in terms of testamentary intent.
- Have the Client initial each page of “Schedule A” and sign it.
- Properly incorporate by reference Schedule A in the Holograph Will.
Here is a link to a sample Client Instruction Sheet for your consideration. Use with caution!
Hoping you are safe and healthy,
In our blog on March 18th, we gave some ideas for getting formal wills executed when the lawyer couldn’t be present to witness. In today’s blog, we have a few more options for our clients to consider if getting a Will executed immediately is necessary.
As we all know, holograph Wills are valid in Ontario. To qualify as a valid holograph Will, the document must be in the handwriting of the Will-maker and signed. The Succession Law Reform Act speaks to being “wholly” in the Will-maker’s handwriting. However, case-law supports the validity of a handwritten portion of a document, even if the entire document is not in the Will-maker’s handwriting. To the extent any part of the document is not in the Will-maker’s handwriting, that part will be excluded from the otherwise valid holograph document.
We have several clients who are in isolation making it impossible to have two witnesses execute our drafted Will. For a simple but, emergency situation, we are recommending that a holograph Will be done. We have a few key provisions to be included as a bare minimum:
- Identifying the document as a Will;
- Revoking prior Will;
- Appointing an executor;
- Simple dispositive provisions;
- Executor’s power to sell; and
The key instructions are:
- The entire document must be handwritten by the Will-maker; and
- The Will-maker must sign the document at the end.
Proof of handwriting will be necessary if the holograph Will must be probated. One option that may come in handy is to have the Will-maker video the writing and signing of the document.
We also strongly recommend that the client come in to sign a formal Will as soon as possible.
Click on the link to see a sample Client Holograph Will Instruction sheet for use in these kinds of situations.
In Monday’s blog, we’ll discuss the novel idea that our colleague, Mary Stokes raised. Can a client use a simple holograph Will to incorporate the terms of a comprehensive formal Will which can’t be properly signed because of a lack of witnesses?
Hope you are all safe and healthy,
It has been almost one year since the music industry and fans around the world lost Aretha Franklin. It was previously believed that Franklin died without a will, leaving an estate valued at approximately $80 million USD to be distributed under Michigan’s intestate succession laws.
However, recent reports indicate that three handwritten notes, which may be wills, have been located. Two are reportedly from 2010 and were found in a locked cabinet, with the third dated March 2014, found under cushions in Franklin’s living room.
The three handwritten notes have been filed, and a hearing will take place on June 12, 2019 to determine their validity.
From a cursory review of the applicable Michigan authorities, it appears that a will is a holograph Will (referred to as “holographic wills” in Michigan), whether or not it is witnessed, if it is (1) dated, and (2) the testator’s signature and the document’s material portions are in the testator’s handwriting. It appears that in Michigan, a holograph will may remain valid, even if some portions of the document are not in the testator’s handwriting, but the testator’s intent can be established by extrinsic evidence.
In contrast, pursuant to Ontario’s Succession Law Reform Act (“SLRA”), to be a valid holograph will the document must be (1) “wholly” in the testator’s own handwriting, (2) signed by the testator and (3) constitute a full and final expression of the testator’s intent regarding the disposition of his or her assets, on death. The SLRA does not require the document to be dated, as is required in Michigan, however both jurisdictions do not require the formal presence, attestation or signature of a witness for a holograph will to be found valid.
In Ontario, and Canada generally, steps are being taken within the legal community in attempts to solve ongoing issues of identifying missing or competing wills. Online will registries are being created so that lawyers and trust companies can upload basic information about the wills they are storing.
The Canada Will Registry’s website indicates that when a user is looking for a will, the site will publish a Knowledge of Will notice, and the lawyer or trust company storing the will (if it has been registered) will be automatically alerted. According to the website, the intent behind the registry is to replace the various search tools currently available with one comprehensive tool.
While such a tool would not have assisted in locating Franklin’s handwritten notes, it represents how the advance of technology can be used to simplify necessary steps regularly taken by estate practitioners, such as the process of locating missing or competing wills.
Technology aside, it will be interesting to see whether or not the Court will find any of Franklin’s handwritten notes to be valid holograph wills.
Thanks for reading!
In Ontario, a Will has to be in writing and typically an original is required for probate to be granted. With the increase of the technological presence in the everyday life of a typical Canadian, the question remains, should electronic Wills be admitted to probate?
Clare E. Burns and Leandra Appugliesi wrote an interesting paper on this topic titled “There’s an App for that: E-Wills in Ontario” that argued for the development of a legislative scheme in Ontario that admits the possibility of electronic Wills.
In discussing this question, the experience of other jurisdictions was considered, including the United States and Australia.
In 2005, the State of Tennessee was the first American state to recognize the validity of a Will executed with an e-signature. In that particular case, the deceased prepared his Will on his computer and asked two of his neighbours to serve as witnesses. A computer-generated signature was affixed to the Will. Almost ten years later, in 2013, the State of Ohio admitted to probate a Will that was written in the deceased’s own handwriting and signed by him, on a tablet computer.
It appears that electronic Wills are most probably valid in Florida, Texas and California and consistent with existing legislation, though the legislation does not specifically contemplate electronic Wills. The State of Nevada, on the other hand, has specifically enacted legislation which expressly allows for the validity of electronic Wills.
Australia, in comparison to the United States, has managed the question of electronic Wills by making use of the “substantial compliance” legislation that exists in each state, which gives the state courts the authority to dispense with the formal requirements for the execution of the Will. In comparison, the legislation in Ontario is one of “strict compliance” such that the formalities of a Will are required before a Certificate of Appointment is granted.
It appears that in Ontario, though a Court could theoretically admit an electronic Will (i.e. not an original copy) to probate, the formalities in accordance with the Succession Law Reform Act must be met, in any event. As a result, an electronic Will that does not meet any one of the formalities will almost certainly not be admitted to probate.
As various electronic gadgets are now being used more and more, Canadians are also using them to make testamentary documents. In keeping with the realities of contemporary life, it may be that legislative reform is needed.
In discussing the possibility of legislative reform, Ms. Burns and Ms. Appugliesi, also addressed the importance of various policy considerations. In doing so, they addressed the John J. Langbein analysis, which set out four main purposes to the formalities requirements in any Wills legislation:
- Evidentiary: the writing, signature and attestation requirements serve as evidence of testamentary intent in a reliable and permanent form;
- Channeling: the writing, signature and attestation requirements ease the administrative burden on the court system by setting out a uniform checklist of what is required before probate can be granted;
- Cautionary: the formalities are designed to impress the seriousness of the testamentary act upon the testator so as to ensure that he or she has fully thought through the result of executing the Will; and
- Protective: the formalities are designed to reduce the opportunity for fraud and undue influence by involving witnesses in the process.
As litigators, the “evidentiary” and the “protective” purposes are particularly important, as we often consider questions of testamentary intent, undue influence and fraud (albeit more rarely), amongst other things.
From that perspective, any legislative amendments to be made must address the various policy considerations and the implications of any such amendments on the legal system in Ontario.
Thanks for reading!
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The general rule, one that most people are probably familiar with when they think of a Will, is that the testator has to have the requisite capacity in order to be able to execute it. But what does that mean?
Generally, it means that a person should be of sound mind and understanding and have sufficient capacity to appreciate the various dispositions of property that would be put into effect with his or her execution of the Will. In other words, the testator must:
(1) understand that they are giving their property to one or more objects of his or her regard;
(2) have the capacity to comprehend the extent of their property and the nature of the claims of others to whom they are giving nothing under the Will.
In the case of a deceased who committed suicide, a question that may arise is whether a person who is about to commit suicide has the appropriate testamentary capacity to be able to execute a Will?
In that regard, it is important to remember that the onus is on the person who is propounding the Will – in other words applying to the court for an order that the Will is valid. In the usual course, there is certainly no presumption against the testamentary capacity of a testator. Indeed, it is quite the opposite. However, in cases where a proposition is made that a death (suicide) note is the last valid will and testament of a testator, it is more likely that someone may object. That is especially the case where an expected beneficiary is disinherited under such a circumstance.
As soon as capacity is called into question, the onus lies on the party propounding the Will to affirm testamentary capacity.
Suicide, in itself, does not equate to testamentary incapacity – although it is a circumstance that may be considered. In fact, a testator may have testamentary capacity even if they are not of entirely sound mind. That means that prior to committing suicide, a person can very well have testamentary capacity. If that is the case, then a death note can be considered a Holograph Will, which in Ontario, in accordance with section 6 of the Succession Law Reform Act, has the following requirements in order to be valid:
(1) It must be entirely in the testator’s hand writing; and
(2) It must be signed by the testator.
There is no requirement for witnesses in the case of a Holograph Will and it must be that the testator intended to dispose of their property after death.
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In W. (W.) v Y. (Y.), the testator’s holograph will gifted the entire estate to his second wife, excluding his daughter and son from his first marriage. The daughter commenced a will challenge and brought a motion for directions pursuant to Rule 75.06 of the Rules of Civil Procedure. The respondent second spouse opposed the motion. She sought to have the will challenge dismissed on the grounds that insufficient evidence had been presented to support an inference that the claim should be heard.
A. Gilmore J. heard the motion, examined the issues and made two key rulings:
- Financial Interest – Rule 75.06 allows any person who “appears to have a financial interest in an estate” to apply for directions as to the procedure for bringing a matter before the court. Justice Gilmore concluded that it would be inappropriate at this early stage to determine that the applicant has no financial interest. The threshold is a low one, such that an objector need not prove that she has a financial interest. In any event, the possibility of an intestacy should the will challenge be successful was sufficient to warrant the court’s involvement.
- Suspicious Circumstances – The deceased suffered an aggressive form of brain cancer that his daughter alleged caused cognitive impairments. The evidence adduced raised questions as to (i) the issue of capacity (echoed by Dr. Kenneth Shulman), and (ii) the prospect that certain portions of the will may offend public policy. Given the wording of the offending provisions, notably described as “disconcerting”, this issue was also linked to that of capacity. Gilmore J. ruled that it was not for the court to decide at the directions’ stage as to whether there are suspicious circumstances, but rather whether there is some evidence that would support a trial judge’s finding of suspicious circumstances in order to shift the burden to the propounder to prove capacity. The evidence in this case satisfied this requirement.
This decision reminds us that a motion for directions is often a preliminary procedural step in estate litigation. The court does not require conclusive evidence but only sufficient evidence to support an inference that the claims raise a genuine issue. Opposing such a motion in an attempt to terminate the proceeding as a whole will not often be successful.
Thanks for reading and have a great day,
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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.
Thank you for reading!
Today on Hull on Estates, David Smith and Andrea Buncic discuss holograph wills, and some difficulties that may arise when making a holograph will. If you have any questions, please email us at firstname.lastname@example.org.
Click here for more information on Andrea Buncic.