Holograph Wills In Ontario

Holograph Wills 

A holograph will that is wholly handwritten by a testator is called a holograph will. Holograph wills are exempt from the statutory requirement that a will be witnessed by at least two people, who each subscribe the will in the presence of the testator.

Below, our friends at Pallett Valo LLP, have laid out everything you need to know about validating a holograph will.

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.

Wholly in the handwriting of the testator

An essential aspect of a holograph will is that it to be wholly in the testator’s own handwriting. Partially handwritten wills, such as fill-in-the-blank forms, do not meet the requirements of a holograph will. Whether or not such a document will be admitted into probate will depend on the court’s ability to sever the handwritten portions from the written portions so that they themselves form a complete expression of the testator’s wishes.

Likewise, it has been determined by the courts in Ontario that typewritten documents cannot be incorporated by reference into a holograph will. Where a holograph will makes reference to a typewritten document, the type-written portion will not be admitted into probate and the handwritten portion must be able to stand on its own as a testamentary document.

Signed by the testator

The signature of the testator will also play a key role in creating a valid holograph will. The signature must be at the end of the document and this will give effect to any disposition that comes before the signature. Anything that follows the signature will not take effect. As well, any disposition or direction inserted after the signature was made will not take effect.

Full and final expression of intention 

Separate and apart from the above two formal requirements set out in the SLRA, case law has established that the contents of a holograph will must reflect that the testator possessed the necessary intention that it be a fixed and final disposition upon death, and not merely some other expression of their wishes. The onus falls on the party alleging the document to be testamentary to show, by the content or by extrinsic evidence that it reflects this intention. 

Handwritten Alterations
Handwritten alterations to wills are governed by section 18 of the SLRA. Where a handwritten alteration is made to a formal will, the alteration must meet the same formality requirements set out in s. 4(1) of the SLRA, i.e. the alteration must be signed by the testator and witnessed by two witnesses, who each subscribe as witnesses to the alteration.

In the case of alterations to holograph wills, a handwritten alteration will only require the signature of the testator. Where there is no signature (or initials) beside the alteration, the issue becomes one of determining when the alteration was made. If the alteration was made at the time of execution of the holograph will, the change is valid. If the alteration was made after the execution of the holograph will, the alteration would be invalid.

In conclusion, while holograph wills can be a quick and inexpensive option, it is evident that there are numerous issues that may affect their validity. As with any legal document, it is always prudent to obtain legal advice about the manner in which a holograph will must be made, and the potential issues that may arise.