Can Handwritten Notes Be Valid Ontario Holographic Wills?
This is how it happened:
Martin’s uncle sent him an email saying he was going to change his will. Uncle Ted told Martin he would change his will beneficiaries and wanted to leave Martin his condominium.
Uncle Ted said he would see his lawyer and make sure everything was done legally to give Martin the condominium.
When Uncle Ted died, Martin could not find Uncle Ted’s new will. He contacted Ted’s lawyer and learned that Ted’s lawyer had drafted a will leaving Martin the condominium.
However, Ted never made an appointment to sign his new will.
Can Emails be Ontario Wills?
Martin went to a number of lawyers to see if his email from Uncle Ted was a holographic will. It was signed electronically by Uncle Ted.
If Uncle Ted had sent Martin a Christmas card saying he was leaving Martin his condominium and signed it, that could be a holographic will. Although some questions may arise as to the date of Ted’s signature. Martin would have to prove the wording on the Christmas card was Ted’s handwriting.
Most important, however, for holographic wills to be valid, is Ted’s intention. Ted’s note had to show a deliberate or fixed expression of intention to dispose of his condominium upon death. Martin would need to produce evidence to show the circumstances that Ted’s Christmas card showed that intent.
Ted’s email is only evidence of intention and not a legal will.
The rules for handwritten or holographic wills vary from province to province. In Ontario, the rule is found in section 6 of the Succession Law Reform Act. I’ve included this extract at the bottom of this post.
Ontario Requirements for Holographic Wills
Holographic wills cannot contain any printed forms and must be 100% handwritten. Ontario requires holographic wills:
- Must be totally in the person’s handwriting.
- Are signed by the person making the holographic will.
- Need no witnesses to sign and validate a holographic will.
Ontario does not require holographic wills to have any formality. That means there are no specifics that need to be incorporated. Furthermore, section 15 of the Succession Law Reform Act (also included at the bottom of this post) specifies that wills can be revoked by marriage in certain circumstances, or by another will, such as a holographic will.
There are many famous cases of handwritten documents being accepted as valid wills. They do not need to satisfy signing formalities of other wills with witness requirements.
You need to understand that holographic wills are legal documents reviewed by the courts. Judges can declare holographic documents are not valid wills. Holographic wills are cheap to produce – but expensive to have a court accept. I have had my fair share of these court cases.
In some cases, you need to hire a lawyer and obtain forensic evidence to examine documents before the courts will allow handwritten, unwitnessed documents to become valid holographic wills.
Ontario’s Succession Law Reform Act states:
6 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. R.S.O. 1990, c. S.26, s. 6.
15 A will or part of a will is revoked only by,
(a) marriage, subject to section 16;
(b) another will made in accordance with the provisions of this Part;
(c) a writing,
(i) declaring an intention to revoke, and
(ii) made in accordance with the provisions of this Part governing making of a will; or
(d) burning, tearing or otherwise destroying it by the testator or by some person in his or her presence and by his or her direction with the intention of revoking it. R.S.O. 1990, c. S.26, s. 15.
Merry Christmas from everyone at MrWills.com.Posted In: Wills On: December 18th, 2019