In a recent Ontario decision, the court had to determine whether a handwritten name constituted a valid signature for the purposes of a codicil to a will.

Testator Creates Codicil to Amend Will

The testator had executed a will in 2004 in the presence of a lawyer and witnesses.

However, in July 2017, the testator sought to make changes to her will by way of a holograph codicil. A codicil is an additional document that can be used to modify, add to or amend a will. Holograph means handwritten.

At the end of the handwritten codicil, the Deceased handwrote the following:

“End of page 3 of the Codicil for the Last Will and Testament of me, [name of testator]

Signed, Published and Declared by the said Testatrix, [name of testator], at the City of Toronto, in the Municipality of Toronto, in the Province of Ontario,

As and for her Codicil as an attachment amending her Last Will and Testament.

Dated on: [left blank]”

The typewritten version of the codicil was never signed or witnessed.

Testator Files Codicil Without a Signature

Later, in September 2017, the testator contacted the Law Society of Ontario to request her file relating to her will because the lawyer, who had prepared her 2004 will, had since been suspended from being a lawyer and the Law Society was in possession of the file.

The testator also informed the Law Society that she had a handwritten codicil that was not yet signed when sending it in.

Parties Seek Directions from The Court

The testator died in August 2020.

The parties involved in her estate sought directions from the court as to the validity of the codicil.

At issue was whether the testator’s handwriting of her name in the attestation clause constituted a signature for the purposes of the formalities for executing a will as set out in Ontario’s Succession Law Reform Act (the “SLRA“).

In other words, did the testator’s printed name constitute a valid signature?

Statutory Requirements in Ontario

Section 6 of the SLRA sets out the statutory requirements for creating a holograph will or codicil as follows: “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.”

Further, s. 7(1) of the SLRA states that a signature on a will, whether holograph or not, must appear “at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will.”

Additionally, s. 7(2)(c)(i) of the SLRA provides that “a will is not rendered invalid by the circumstance that the signature is placed among the words of a testimonium clause or of a clause of attestation.” 

Finally, s. 7(2)(e) states that a will is not rendered invalid by the circumstance that “there appears to be sufficient space on or at the bottom of the preceding side, page or other portion of the same paper on which the will is written to contain the signature.”

Court Rules That Printed Name Not a Valid Signature

At the outset, the court explained:

“[I]t is well-settled law that, at least for the time being, Ontario is a “strict compliance” jurisdiction for assessing the validity and enforceability of testamentary documents. The formalities set out in the SLRA must be complied with. The intention of the testator, no matter how plain, as gleaned from the substantially compliant document, is irrelevant. […]

What distinguishes a “signature” from writing out one’s name in long hand, for the purposes of this analysis, is that, it must be apparent that what is alleged to be the act of signature was specifically intended by the testator to give legal effect to the document, per s. 7(1) of the SLRA. The SLRA specifically requires a “signature” in addition to the wholly handwritten text.”

Ultimately, the court found that the testator knew that she needed to sign the holograph codicil in order for it to be valid, but had failed to do so. It further found that the inclusion of the testator’s handwritten name twice in the attestation clause did not make it apparent that she intended to make the holograph codicil binding. Instead, the court found that her statement to the Law Society that the codicil was not signed showed that she did not intend to make the codicil binding without a signature.

In the result, the court, therefore, held that the testator had not complied with the formalities for executing the holograph codicil as set out in the SLRA. Therefore, the court ruled that the holograph codicil was not a valid testamentary document.

Contact Campbells LLP in Oakville for Experienced Advice on Estate Planning

Protecting your assets and ensuring your family and other loved ones are provided for in the future is not something most people want to think about. However, effectively managing your wealth and protecting your spouse, children, and your estate is something that everyone should do at some point to ensure that your express wishes are carried out. An effective estate plan goes far beyond just creating a will. You should also consider securing other important legal tools including powers of attorney (for personal care and for property), trusts (including Hansen trusts if you have disabled children or other dependants), as well as the designation of beneficiaries on life insurance policies, pensions, and other key documents.

The best way to guarantee that your wishes will be carried out exactly as you would like them to is to consult with an experienced estates lawyer. At Campbells LLP in Oakville, our wills lawyers have been helping clients with wills and estates matters since 1999. We will meet with you to help you clarify your long-term objectives and will create a personalized, effective estate plan designed to meet those goals. As your family grows or changes, we will ensure your estate plan is amended as required to ensure it continues to protect your ultimate objective. Contact us online or at (905) 828-2247 to learn more about our services.