There are two types of wills which are recognized in Ontario: formal wills and holographic wills. A holographic will is a will which is entirely handwritten by the testator. Under the Succession Law Reform Act (the “Act”), holographic wills are recognized as valid wills subject to their compliance with specific requirements. However, because of their unique nature, holographic wills have been at the heart of many estate litigation disputes. While holographic wills may seem straightforward, many issues can arise with the legitimacy and enforceability of the will itself. 

Requirements for a Valid Holographic Will 

Under section 6 of the Act, there are two requirements for a holographic will to be deemed valid. The testator must entirely write the holographic will in their handwriting, and the testator must sign the document. The testator’s signature must be at the end of the handwritten document to give effect to wishes before the signature. Anything listed below the testator’s signature will not be considered. Unlike formal wills, a holographic will does not need to be signed in the presence of two witnesses. 

Like formal wills, it must also be affirmed that the testator possessed a sound mind and intellectual capacity when the holographic will was prepared. 

Legibility and Attachments

Holographic wills pose some unique considerations and challenges for the courts. Since the holographic will is a completely handwritten document, legibility is at the forefront of potential issues. If a testator’s handwriting is illegible, it may not be admitted to probate. 

Because the Act requires the entire document to be handwritten, partially written wills or fill-in-the-blank forms do not satisfy the written requirement. The case of Facey v. Smith stated that typewritten documents if referred to, cannot be incorporated into a holographic will. If a document references attachments, the typewritten document(s), even if signed by the testator, will not be admitted into probate or enforced.

Amending a Holographic Will 

A testator may make alterations to a holographic will. However, amendments must only be written and signed by the testator. Alterations made after the execution of the document will not be enforced. Amendments need to be dated. Therefore, confusion may arise when determining when an amendment was made.

In Rezaee (Re), the testator had been diagnosed with cancer and had prepared a holographic will during a dinner party which was signed in the presence of several dinner guests. The document left most of the testator’s assets to one sole beneficiary, a friend of the testator who had provided the testator with personal care and assistance following his cancer diagnosis. 

After the testator’s death, the beneficiary discovered the holographic will in their coat pocket. It is believed that the testator placed the document in the coat. The Superior Court of Justice held that despite the lack of testamentary language and the location in which the document was found, it was a valid holographic will as it contained clear and deliberate intentions for the testator’s dispositions.

Holographic Will Valid, Prior Typewritten Will Revoked

Unclear final wishes and non-comprehensive dispositions may lead to issues with interpretation and enforcement. Complications may also arise if multiple copies of an alleged holographic will or numerous drafts are found. It can be problematic to determine which copy contains the testator’s true and final dispositions.

In the case of Niziol v. Allen, the testator had prepared a formal will in 1998. In 2001, she prepared a one-page handwritten document which altered the distribution of her estate. After her death, one of the testator’s children challenged whether the written document was intended to replace the 1998 will and the document’s validity was challenged.  

The Superior Court of Justice found that the document contained testamentary language, which showed the full and final intention of the testator. Specifically, the language used within the document was consistent with how testators typically identify themselves, beneficiaries were identified, and the language reflected intention. However, Justice Stinson noted that the 1998 formal will and 2001 holographic will could not stand together. Therefore, the Court held that the holographic will was revoked and replaced the formal will.

Testator Must Have Intended to Create Fixed and Final Disposition

Aside from the two statutory requirements of a holographic will, common law has emphasized that the contents within the document must reflect a testator’s intention to create a full and final disposition upon their death. The case of Bennett v. Toronto General Trust Corp states that a holographic document must be considered as a whole in its “ordinary and natural sense.”

In Laframboise v. Laframboise, Justice Gordon affirmed that a holographic will not be recognized as testamentary unless it shows a “deliberate or fixed and final expression of intention” regarding the disposition of the deceased’s property after their death. Further, the party who claims that the document is testamentary bears the onus of proving that it is intended to be used as such. The document’s contents, or extrinsic evidence, may be used to establish intention. 

Testator’s Holographic Will Challenged due to Non-Testamentary Language

In Laframboise v. Laframboise, the deceased’s spouse questioned whether a handwritten document was a valid holographic will. The document title began with “The Informal will and Last Requests…” and contained instructions regarding the deceased’s asset distribution. While the document did not appoint a specific person to distribute the deceased’s estate, it did provide a means for the distribution of his assets.

The deceased’s spouse challenged the document based on the use of the uncertain words “informal” and “requests.” 

The Superior Court of Justice considered the document as a whole. It noted that the testator began the document with “hereby follows my will and last requests” and included specific statements regarding his requests. Therefore, the document in question was deemed the testator’s final disposition. The Court concluded that the use of testamentary language was not determinative. 

The Estate Litigation Lawyers at Tierney Stauffer LLP Advise Executors and Beneficiaries in Estate Disputes and Will Challenges

The estate litigation lawyers at Tierney Stauffer LLP in Ottawa, Cornwall, Kingston and North Bay focus on helping executors and beneficiaries work through estate disputes. Our team knows that estate disputes can be emotionally and financially taxing, so we work with clients to resolve the most complex matters. Whether it is assisting with estate administration or defending a will challenge, including a holographic will, we are ready to help. To arrange a consultation, reach out to us online or by phone at 1-888-799-8057.


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