Tag: Will execution

Holographic Wills

At issue

The purpose of a Will is to dispose of one’s property at death.  

All provinces have rules governing the formality of Will execution.  Within such rules, witnesses serve the function of providing independent confirmation of the validity of the execution process. That said, a witness may not be necessary in all cases.  

A holographic Will does not require any witness.  At a minimum, such a document must be entirely in a person’s handwriting and be signed.  Some provinces require a date, while other provinces do not.  As well, a province may limit holograph Wills to specific circumstances or individuals, for example only for those in military service.

Regardless which form the document takes, it must be clear it is intended to function as a Will in disposing of property at death.  

Estate of Cecil George Harris, d. June 8, 1948

This is the classic case that students learn about in their first Wills course at law school.

Cecil George Harris was a farmer in Rosetown, Saskatchewan who became pinned under his tractor.  Alone and realizing the severity of his injuries, he used his pocket knife to scrape some words into the painted fender: “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”

Though he was found alive, Mr. Harris succumbed to his injuries in hospital.  Days later when a friend towed the tractor back to the barn, he noticed the inscription and removed the bumper.  It was offered into court as a holographic Will, and eventually accepted as valid.

The bumper and pocket knife remained ‘on file’ in the local Courthouse for almost 50 years, and are now on display at the University of Saskatchewan Law Library.

Popowich Estate, 2012 ABQB 665

This is a recent and sad case where a court was called upon to determine whether a suicide note constituted a holographic Will.  

The deceased woman SLP had been diagnosed with a bipolar condition in her adult life, and subsequently suffered from anxiety, fear, depression and overall sadness.  She was married, and had executed a formal Will in late 2009 dividing her estate equally between her husband and her mother.  In July 2010, SLP had been missing for a couple of days before being found deceased.  Police determined that she had committed suicide.  

A 9-page handwritten letter was found with the body.  Addressed to her mother, SLP expressed how she felt “stuck in a circle of pain”, but otherwise showed her continuing affection for both her mother and husband.  In it, she also wrote,“Take my money and do things for yourself,” which the mother argued was a testamentary statement. 

In court, the letter was found to have indeed met all the technical requirements for being a valid Will, including that SLP had testamentary capacity.  However, the judge ruled that there was no indication of an actual or implied revocation of the formal Will.  Rather, SLP had left her mother the “gift of trying to provide comfort in an excruciatingly painful situation.” 

Practice points

  1. In urgent situations, a holographic Will may be the only way to record one’s testamentary wishes.  In less pressing circumstances, the process of preparing a formal Will allows for a more considered, comprehensive review of one’s affairs.
  2. The requirements for execution of holographic Wills vary from province to province.  As well, even if a document is validly executed in the current province, it may not be enforced as expected if the testator lives in a different province at death.
  3. Disappointed beneficiaries may be more inclined to challenge a holographic Will, as compared to one prepared by a lawyer.  A competent professional can advise on content and oversee execution, so that the testator’s wishes are correctly reflected in the document and in the ultimate result.

EstateWISE – Executing a valid Will

Accepting that a Will is a necessary component of a well-considered estate plan, what steps should or must be taken in order to assure that the Will is validly executed? 

Let’s start with the person making the Will – Who can do that?

  • These comments are generally applicable in the common law provinces, but Quebec may be different as it is governed by Civil Code.
  • The person who makes or executes the Will is called the testator, and that person must understand …
    • the nature and effect of a will
    • the nature and extent of his or her property
    • what is being given under the will, and the relative entitlements of beneficiaries
    • the persons who may be expected to be beneficiaries under the will, and 
    • the potential claims of those who may be excluded from the will. 

Assuming we then have a capable testator, what is the most common form of Will?

  • An “attested Will” is a witnessed Will, and therefore it has that independent evidence to rely upon
  • The testator must sign or execute it at its end
  • There must be two or more witnesses present when the testator executes, and
  • The witnesses must then sign the document in the presence of the testator and one another

If that’s the most common form, is there then an uncommon form?

  • Most jurisdictions will allow a “holograph” Will which is entirely in the person’s own handwriting, and without any particular formalities.  
  • In an emergency this may be the only alternative, but as soon as there is time then an “attested Will” should be prepared.

So if I want to be careful and have an “attested Will”, can anyone be a witness?

  • Generally a witness should not be a beneficiary, executor or trustee, or spouse of any of those people — or for that matter, it should not be anyone who might derive an actual or perceived benefit out of the Will, or otherwise from the testator
  • Using independent witnesses helps avert claims of duress, undue influence, or other concerns about the testator’s state of mind at the time of the execution
  • The risk is that some or all of the Will may be rendered ineffective
  • If the Will is executed under a lawyer’s supervision, these concerns and risks are far less likely to come about