The short answer is: yes, you can. But the real question is whether you should!
In Ontario, there are two types of legally recognized Wills. The most common type is known as formal Wills. These are typed out on a computer and printed, often by a lawyer, and require two witnesses to be present when they are being signed and dated.
Ontario’s Succession Law Reform Act provides one other type of will, known as a holograph Will. This is a handwritten Will, signed and dated by the testator (the person the Will is for) and does not require witnesses.
This article will explain holographic Wills and why they carry significant risks compared to formal Wills.
Simpler and cheaper – what’s not to like?
Compared to formal Will, holographic Wills might seem like a pretty good deal at first glance: they don’t cost anything, and you don’t even need a computer to prepare one. You can get a sheet of blank paper and a pen right now and write one out!
Once upon a time, holographic Wills were pretty common. In fact, the rationale for their legitimacy made perfect sense: in emergencies, for example, a miner who was trapped in a mine collapse and at risk of dying, they were seen as a practical way to allow testators to express their last wishes and quickly put important estate affairs in order. In many cases, they were nothing more than a few sentences intended to convey who might get specific property and name an estate trustee (or executor) to handle the testator’s estate matters.
Unfortunately, today the risks of holographic Wills are significant and, in many cases, can give rise to many thorny legal issues.
For a holographic Will to be valid, it must be written entirely by the testator (which may be proved, for example, by other parties who can produce other samples of the testator’s handwriting.) If a holographic Will contains typed portions, those portions will not be considered valid or part of the Will. This means that partially handwritten wills and forms filled with blanks do not meet valid holographic Will criteria. It is also impossible to refer to other typed documents in the holographic Will.
A signature is critical for holographic Wills, and it must appear at the end of the document. If it occurs earlier, it may raise questions about the validity of anything written after the signature.
Similarly, if the testator makes changes in handwriting (sometimes known as a codicil) but does not put initials or date those changes, they may not be considered valid since it will not be clear when those changes were made.
In this age of computers, few of us spend much time writing with pens – meaning many people’s handwriting is messier than ever! Not being able to read what a holographic Will says will cause many problems. Suppose there is ambiguity about what the Will says. In that case, courts will be forced to turn to any other available evidence (for example, other written documents). If there is none, it may fall to others, including potential beneficiaries, to try to figure out the testator’s wishes.
Even where the wording is legible, imprecise language can lead to ambiguity about intent. Vocabulary that is too flowery or vague can lead to disputes between beneficiaries.
To be valid, a testator must have the capacity (also known as being “of sound mind”) when the holographic Will is written. While in the absence of evidence to the contrary, it is generally assumed that a testator has the capacity, there are situations where that capacity might be challenged or where the capacity of the executor might be ambiguous.
Does it really express a testator’s final wishes?
In addition to the formal requirements outlined above, it must be established that the contents of a holograph Will reflect the final wishes (as opposed to earlier wishes which may have been superseded.), although this is assumed to be the case in the absence of conflicting evidence.
Why do I need a lawyer to draft a Will?
For all of the reasons above, while it might seem like a great idea to save some money by handwriting your own Will, doing so can easily give rise to problems that can seriously impact how your estate is distributed.
An improperly drafted holographic Will can be challenged in court, leading to high costs and delays in distribution. Ultimately, you accidentally disinherit an intended beneficiary or accidentally include people you did not wish to be included. In some cases, it may be found to be invalid in which case your estate will be distributed under a default set of intestate (i.e. without a Will) rules as determined by the Succession Law Reform Act.
The reality is that holographic Wills are generally ill-suited as modern estate planning tools. While they may still have a role in emergencies, where you can plan, you are better off investing the time and money in an experienced lawyer who can help draft a formal Will and ensure your final wishes are respected.
Contact the Estate Lawyers at Tierney Stauffer LLP in Ottawa and Arnprior for Comprehensive Estate Planning
When drafting a will, having clear and concise language can help avoid delays or costly litigation among the eventual beneficiaries. Tierney Stauffer LLP uses a client-focused approach and provides innovative guidance through the estate planning and administration processes. Our estate planning and estate litigation lawyers offer practical and honest advice to clients and represent their interests. We have extensive experience working with clients in estate planning matters and representing them in litigation should it become necessary. Call us at 1-888-799-8057 or contact us online to set up a consultation with a member of our team