Tag: Holograph Wills
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
Listen to Delay in the Granting of Probate.
This week on Hull on Estates, David and Sarah discuss issues that cause delay in the granting of probate.
In Ontario, a valid Holograph Will, by definition, is made and signed entirely in the handwriting of the testator. While this sounds simple enough, such documents often invite litigation.
For the person propounding such a Will, the first objective is to prove that the handwriting is that of the alleged testator. Of course, another distinctive feature of a Holograph Will is the absence of witnesses. Proving the identity of the author of a Holograph Will therefore usually requires expert analysis of the handwriting. The expert may encounter difficulties. Rather than writing a Holograph Will in her ordinary handwriting, the testator may have printed the document.
To successfully prove the handwriting of the testator, an expert typically requires several samples of the testator’s signature and writing style. In the absence of such samples (and in the absence of witnesses) it is far from a certainty that the Will can be proved. Further complicating matters is the absence of the original.
While a copy of a Will can be proved in the right circumstances, the absence of witnesses makes it more difficult to prove a copy of a holograph will. On a final note, Holograph Wills frequently give rise to questions of interpretation.
Until next time,
Listen to "Testamentary Intent: Holograph Wills"
Read the transcribed version of "Testamentary Intent: Holograph Wills"
During Hull on Estates Episode #64, David Smith and Natalia Angelini discuss holograph wills generally with specific consideration of the Atherton Estate, Re, 2006 CanLII 30580 (ON S.C.)
In Ontario, a testamentary document that is entirely made in the handwriting of a deceased and signed by him or her may be considered a valid will without the necessity of witnesses. But where such a document has two lines with the word “witness” under each line at its end, and where no one has signed as a witness, does the document still meet the requirements of a valid will?
This was the fact situation which presented itself in the recent Ontario case: Re Atherton Estate. The Court concluded that, while there was no question that the document met the formal validity requirements of a holograph will*, the surrounding circumstances suggested that the deceased intended the document to be a draft that would not take effect until it had been typed out and re-executed by the deceased in the presence of two witnesses.
The wrinkle was that, when the relative to whom the deceased had given the handwritten documents returned to visit him in hospital the next day with the typewritten copies, the deceased exhibited no intention to execute the will in its typewritten form.
David M. Smith
*Succession Law Reform Act, R.S.O. 1990, C. S. 6