Tag: holograph

16 May

Q. When Can A Letter Be A Will?

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A.         When it contains “a deliberate or fixed and final expression of intention as to the disposal of property upon death”.

This question, its answer, and the application of the answer to particular facts was considered in Casavechia Estate (Re), 2014 NSSC 73 (CanLII).

There, the deceased died on September 1, 2012. He died leaving a Will dated October 2, 1996.  He also died leaving a handwritten letter dated November 14, 2010.  The letter purported to give the deceased’s daughter a lakefront building lot to be carved out of the deceased’s property when it was sold.

The issue to be decided in the case was whether the letter was a valid holograph codicil.

There was no issue that the technical requirements of a valid holograph will or codicil were met: the letter was entirely in the handwriting of the deceased, and was signed by him.

However, to be valid, the letter must also demonstrate a testamentary intention or animus testandi.

The court found that the letter used language that was “of a more formal and ceremonious nature that one would expect of an ordinary note from a father to his daughter.”  Further, the deceased placed the letter in a sealed envelope, and asked his daughter not to open it. These facts, it was said, suggested that the letter was “a significant document”. 

Further, although the letter spoke of a “gift” from the deceased to his daughter, the court implied that the gift was only to take effect after the death of the deceased. 

The fact that the note contained a phrase stating that “I hope this will be agreed with all concerned” did not make the gift conditional on such agreement.  Rather, the phrase was found to be hope that there would be no disagreements when the deceased’s wishes were carried out after death. 

The note was also consistent with statements made by the deceased that he intended to give the property to his daughter.  There was some evidence that the deceased, at certain points, intended to sell the entire parcel, including the lakefront portion, if the price was right.  The court stated that this did not take away from the effect of the letter, saying that the intent to make the gift did not interfere with the deceased’s right to deal with the property during his lifetime. 

Finally, the court noted that there was good reason for the deceased to make the gift: in the letter, the deceased expressed that he had felt guilty about not giving his daughter a wedding or honeymoon gift.

The court concluded that the letter was a valid holograph codicil.

Unfortunately, the letter did not describe the location or size of the lot to be given to the daughter. The court left it to the parties to try to reach an agreement on the exact location and size of the lot in accordance with existing subdivision requirements.

Have a happy, safe long weekend.

Paul Trudelle

19 Oct

Handwritten Changes on a Will

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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. 
 

Sharon Davis – Click here for more information on Sharon Davis.

01 Apr

Issues Causing Delay in the Granting of Probate – Hull on Estates #104

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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.

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