Holographic Wills Allow for Less Formality but Some Requirements Remain

February 25, 2022

Written on behalf of Feigenbaum Consulting

When we blog about wills, we often do so with the urging that it’s important to work with a lawyer to have a proper will in place in order to avoid estate litigation and ensure your estate is distributed as you wish. There are certain formalities that are normally required in wills, such as that it be signed and witnessed by two people. However, there are instances in which these formalities can be set aside. A holographic will is one that is written and signed by the testator but does not contain signatures from witnesses. In some cases, people need to draft a will or override an old one but are unable to go through the standard procedure to have a will established. Holographic wills can be used in these situations. As you can imagine, COVID-19 gave people plenty of reasons to put together holographic wills, especially during the pandemic’s early days when people were largely unable to see one another.

It should be noted that even though a holographic will allows the testator to avoid some requirements, there are still certain elements that the will must contain. For this reason, it is important to put in place a properly drafted will if at all possible in order to reduce the uncertainty regarding its validity. A recent decision from the Ontario Superior Court of Justice looks at a situation where a holographic will was not upheld by the court, and as such likely resulted in the testator’s estate being distributed contrary to her wishes.

Cancer patient writes holographic will in early days of COVID-19

The matter came before the court after the trustee of the estate (“CK”) sought to have a holographic will, written by the testator (“RL”) be granted letters probate, which is a legal process in which a court confirms the validity of a will. As we will see, this is a critical step in cases including holographic wills since those wills don’t contain all the formal elements we normally see in wills.

The testator wrote the will after falling into the final stages of cancer in the Spring of 2020. The testator spoke to her lawyer on the phone and instructed her to prepare a will in order to ensure her youngest child was cared for. Due to COVID-19, the lawyer was not able to visit the testator in the hospital. A draft of the will was left at the hospital with instructions for the testator. The testator died later that day, but wrote a holographic will which stated,

“I, (the testator), declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.”

The lawyer was provided with the holographic will along with a copy of the draft will with the testator’s initials on each page. Following the passing of the testator, the trustee sought a Certificate of Appointment, which is needed to carry out the directions contained in the draft of the will.

How does the law address holographic wills?

Ontario’s Succession Law Reform Act states that a testator can make a valid will if they handwrite it and sign it and that it can be held as valid without signatures from witnesses. However, the Act also states that a holographic will must be prepared with “testamentary intent regarding the final disposal of the testator’s property.” In plain language, it means that the holographic will has to address what happens to the testator’s property.

The court then went on to address the concept of Incorporation by Reference, which allows a document other than a will to be part of the will. For an outside document to be considered part of the will, there are certain requirements that must be met. The requirements are:

  • The document must be in existence at the time the will is made;
  • The document to be incorporated must be described in the will as being in existence at the time of making the will; and
  • The document to be incorporated must be sufficiently described in the will so that it is clear that the document submitted for admission to probate is the same as the document referred to in the will.

The problem the trustee ran into is that a holographic will must be written entirely by the testator. In this case, the handwritten part was in the testator’s writing, but the draft of the will (as opposed to a fully executed will) was written by the testator’s lawyer, which means it can’t be incorporated into the holographic will.

The testator’s note, which makes up the holographic will, said it was intended to constitute her last will and testament. But it then went on to reference the draft of the will rather than dealing with the disposition of her estate right in the note. Therefore, the court declined to issue the certificate needed to allow the will to stand.

Contact Feigenbaum Law in Toronto if you are dealing with a matter related to estate litigation

We know how difficult it is for a family to find out that a loved one’s will cannot be validated because of requirements that the testator and their family may not have even been aware of. Our estate litigation team, led by Mark Feigenbaum, understands the stress and emotional toll that estate issues can cost, and it’s why we work hard to protect our families, their clients, and their assets by helping you retain as much financial stability as possible while going through the litigation process. Mark Feigenbaum has a multi-faceted background, covering litigation, corporate law, tax law, and family law, putting him in a unique position to assist clients in a wide range of situations of both personal and professional nature. To find out how we can help you, please don’t hesitate to reach out to us online or by phone at 905-695-1269.

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