In Ontario there are very formal requirements for signing Wills that are properly prepared by your lawyer. There are complex provisions requiring that the two independent witnesses who must sign the Will in the presence of the person making the Will (the Testator or Testatrix) fall outside of a specific group. Otherwise the Will may be compromised in whole or in part.

Wills which are prepared on stationer's forms that are partly typewritten and partly handwritten are problematic in many ways. These types of Wills can be real fodder for unhappy beneficiaries and litigation. The complex witness requirements apply to these Wills. These Wills are not considered to be holograph Wills except under rare technical conditions.

A holograph Will is a Will that is entirely in the handwriting of the Testator and is signed by him or her at the end. No other witnesses are required. Section 6 of the Ontario Succession Law Reform Act allows this by stating "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."

Holograph Wills, if properly prepared, are recognized in Alberta, Manitoba, New Brunswick, Newfoundland and Labrador, the Northwest Territories, Nunavut, Ontario, Quebec, Saskatchewan and the Yukon.

Some interesting cases dealing with holograph Wills have differing results.

In Simms Estate v. King a 1995 Newfoundland Trial Division case the Testatrix wrote specific bequests in her handwriting on a piece of paper which was dated. It was signed "Love Mother." The court decided that was not a signature so the document did not qualify as a holograph Will.

In Re Coate Estate a 1987 Ontario Surrogate Court decision the Testatrix had typewritten a letter expressing clear testamentary intent. She added handwritten comments and signed the letter. The court stated the handwritten portions must be examined separately to determine whether the Testatrix' words contained the necessary testamentary and dispositive language capable of treating the statements as a Will. Unless the handwritten portion can stand on its own as a holograph Will, the typewritten portion could not be incorporated by reference in the handwritten portion. This has been confirmed in many other cases.

In Dilts v. Roman Catholic Episcopal Corp. of the Diocese of London in Ontario a 1998 Ontario General Division case the court considered whether a handwritten piece of paper found in a matching envelope was a holograph Will. It was concluded that the language used by the Testatrix was direct, deliberate, final and to be acted upon at her death. It was found to be a valid holograph Will.

A holograph Will, assuming it contains all of the elements necessary to make the Will valid, might be a good vehicle to use if someone was in a rush to complete a Will. The better choice, of course, is to properly instruct a solicitor, who is familiar with preparing Wills and has some estate planning expertise, and then sign that Will in the solicitor's office in front of two independent witnesses. The solicitor would then have an affidavit of execution prepared and might store the original Will in her vault at no extra charge to the client.

In order to have piece of mind that your Will is valid and executed validly it is important to have it prepared properly by a competent solicitor. The cost is minimal considering what turmoil your family may be thrown into if your existing Will is not valid or you have no Will.

By Sally H. Burks

To contact Sally Burks, please e-mail sburks@perlaw.ca or call (613) 566-2840.