Tag: Holograph Wills
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.
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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.
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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.
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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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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.
When you conjure up the image of what a "Will" is supposed to look like, you likely imagine an impressive formal document with large cursive script that proudly declares "This is the Last Will and Testament of" at the top. The kind of document that would not look out of place in a 16th century manuscript, or in an old Victorian library with dust on top. At the very least, you likely imagine a formal document created to comply with rigid rules about its execution and who must be there to witness it.
What you may not know however is that while this formal will still has an important place in our laws, it is not the only kind of will that the law will recognize. Holographic wills are one of the exceptions to the classic formal will, and offer an interesting insight into non-traditional testamentary documents. In Ontario, section 6 of the Succession Law Reform Act states that "A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness." A will created pursuant to these provisions is known as a holographic will. Put simply, a holographic will is a will that is entirely in handwriting of the testator that does no have to meet the formal requirements regarding execution that a traditional will does. So long as the will is entirely in the handwriting of the testator, signed by the testator, and has a "donative intent", the holographic will can be held to be the Last Will and Testament of the deceased.
Perhaps the most famous example of a holographic will in Canada is that of Cecil George Harris, a Saskatchewan farmer who in 1948 carved his will into the bumper of the tractor that he was pinned under. Using a small knife, Cecil carved "In case I die in this mess, I leave all to the wife. Cecil Geo Harris." Unfortunately for Cecil, he did not survive the incident. When the carving was discovered several days later by one of Cecil’s neighbours, the bumper was removed and brought to the court, where it was determined to be a valid holograph will. The bumper has now achieved a sort of celebrity status within the legal community, and is currently on display at the University of Saskatchewan Law Library.
Examples such as that of Cecil are not relegated to the history books. A local CBS affiliate in Houston, Texas recently reported on a man who, after being stuck in his car at the bottom of a ravine for three days, wrote his will on the console of his car. While thankfully the man was rescued, had he not been, it is likely that the will he wrote on his car’s console would have been accepted as his Last Will and Testament. The document was wholly in his own handwriting, was signed at the end, and had a "donative intent".
Though these two examples are rather extreme (as a simple piece of paper will do), they do a good job at showing the lack of rigidity that the courts are willing to accept when it comes to non-traditional testamentary instruments and holograph wills. So long as the document is entirely in the handwriting of the testator and is signed at the bottom, the document will meet the formal requirements of a holograph will and may be admitted to probate.
Ian Hull – Click here for more information on Ian Hull.
When a testamentary document comes before the Court, it is commonly understood that the Court will strive to give effect to the testator’s intention to make a Will and to avoid an intestacy if at all possible. Of course, not every Will is drawn by a competent lawyer. In the internet age (and the will kit age) do-it-yourselfers constantly challenge the Probate Court with documents which challenge common preconceptions. And lawyer-drawn Wills may themselves be modified after the fact by the testator’s handwriting in an ill-advised attempt to save legal fees.
As a general proposition, handwritten portions of a will kit or the holographic part of any document containing non-holographic writing, may be probated as a Holograph Will provided the Court is satisfied that: (i) the document was intended to have dispositive effect; (ii) the typed printing is "superfluous or unessential"; and (iii) the holographic parts are capable of standing by themselves without the typed print.
Such was the case in Re Laidlaw Estate, a recent case out of the Court of Queen’s Bench of Alberta. The handwritten changes made by the testator to his lawyer-drawn and executed Will could not function as valid amendments given the absence of witnesses. However, the Court considered the handwritten changes to the Will to stand on their own and therefore be probated as a Holograph Will.
David M. Smith – Click here for more information on David Smith.
The requirements of formal validity have, on occasion, bedeviled the Courts. Presented with overwhelming evidence of testamentary intent, the Court’s hands may nonetheless be tied by uncompromising legislative requirements.
In Nova Scotia, the legislature proclaimed (on August 18, 2008) an amendment finally permitting the making of Holograph Wills. Moreover, the amendment also permits Wills to be admitted to probate that do not meet the requirements of formal validity if the Court is satisfied that a flawed document nonetheless reflects the testamentary intentions of the testator.
Lawyer’s Weekly just reported on MacDonald v. MacDonald, a decision out of the Nova Scotia Supreme Court. In this case, the testator made a Will entirely in her own handwriting but left it unsigned. It was, however, witnessed and the two witnesses gave evidence that the testator had attested to it as her last Will in their presence. The testamentary document before the Court in MacDonald therefore fell within both branches of the amendment to the provincial statute. However, the Will was not admitted to probate because it was made prior to the proclamation of the amendment to the Wills Act. Unlike Ontario’s Succession Law Reform Act which provided for retroactivity to 1978, the Nova Scotia amendment did not have a similar clause.
David Morgan Smith
David Morgan Smith – Click here for more information on David Smith.
The March 2009 issue of Vanity Fair includes an interesting (albeit cheeky) article entitled "Final-Exit Strategies." Citing such works as Tuesdays with Morrie and The Last Lecture, the article notes the recent prevalence of works of fiction and non-fiction that are written from the perspective of someone contemplating their own imminent demise. "The Grim Reaper as Life Coach" (one of the numerous tongue-in-cheek observations in the article) may not be the most sensitive assessment of such works but it does contain a kernel of truth: "given that we’re all on death row, existentially speaking, finding a good writer to keep us company may be as good as it gets."
It got me thinking about how, for most people, their Will is likely the only document written for an audience to consider after their death. And its aim is, of course, strictly businesslike: who gets my stuff when I die? Rarely does one see a Will which pronounces in any way on an individual’s personal philosophy or the conveying of life lessons. But that may be changing. In a past blog, Paul Trudelle commented on "Ethical Wills" (and see www.ethicalwills.com) which are created for just such a purpose, and Ian Hull and Suzana Popovic-Montag explored this issue in further detail in a podcast.
Whether the legal profession will be prepared to embrace this broader concept of the purpose of the Will is an open question. Of course, the odd Holograph Will will contain some candid personal insights that would not otherwise be seen in a lawyer-drawn Will and, it could be argued, stand a better chance of getting published!
David M. Smith