In Ontario, the general rule is that for a will to be valid it must have been signed by the testator and witnessed by two individuals who are not beneficiaries to the will. However, the concept of a holograph will can enable a person to create a document that will be recognized by a court without the formal requirements of a traditional will.
What is a Holograph Will?
A holograph will is a will written entirely in the testator’s handwriting without the witness signatures that form part of a traditional will. These documents may be recognized as legally binding so long as they satisfy the requirements set out in provincial legislation.
In Ontario, holograph wills are recognized under s. 6 of the Succession Law Reform Act, which states:
Holograph wills 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.
Ontario law requires that a holograph will be written in the testator’s own handwriting and signed by the testator. Additionally, a holograph will must contain provisions that dispose of the testator’s property upon death.
In a recent Saskatchewan decision, a court had to determine whether a testator’s will was valid after it had been written on a fast-food restaurant’s napkin prior to his death.
Testator Writes Will on Napkin
In Saskatchewan, holograph wills are also recognized by statute. Section 8 of The Intestate Succession Act mirrors the language of Ontario’s legislation, stating:
A holograph will, wholly in the handwriting of the testator and signed by him or her, may be made without any further formality or any requirement as to the presence of or attestation or signature by a witness.
At issue in the case was whether the napkin constituted a valid will, as claimed by two of his children.
The testator was a widower who had eight children (one of whom was deceased). The testator passed away on December 30, 2015. Following his death, two of his children produced a paper napkin on which the testator had listed the names of his children in pen. At the end of this list, he had written “Split my property evenly”. At the end of the bottom of the napkin, he had included his signature. His two children claimed that the testator had written his will on the napkin while at a fast-food restaurant, believing that he was having a heart attack.
There was no dispute amongst the testator’s children that the estate should be divided equally among them. Additionally, the question was largely theoretical as, even if the napkin will was not recognized as a valid holograph will, all the children would be entitled to inherit equally under provincial succession laws. Nonetheless, some of the testator’s children doubted the authenticity of the napkin will and whether it had been the testator’s intention to use the napkin as his formal will.
Court Declares Napkin Will as Valid
The court explained that it had to determine whether the napkin met the requirements set out in s. 37 of The Wills Act, 1996 (the “Act”). Section 37 states:
- The court may, notwithstanding that a document or writing was not executed in compliance with all the formal requirements imposed by this Act, order that the document or writing be fully effective as though it had been properly executed as the will of the deceased or as the revocation, alteration or revival of the will of the deceased or of the testamentary intention embodied in that other document, where a court, on application is satisfied that the document or writing embodies:
(a) the testamentary intentions of a deceased; or
(b) the intention of a deceased to revoke, alter or revive a will of the deceased or the testamentary intentions of the deceased embodied in a document other than a will.
The court first found that there was sufficient evidence to establish the testator’s testamentary capacity in making the will. It further found that, without speculation, the napkin showed the testator’s final wishes, stating:
“Exemplary of the court’s satisfaction that s. 37 of the Act saves the document as a valid will is the explanation that [the testator] thought he was having a heart attack – a time when one’s mind would reasonably turn to the question of estate planning, especially in the absence of an existing will. [The testator]’s immediate delivery of the will to his [daughter], and the comment he made to her – as evidenced by both [his children]’s statements – that she keep the document in case something happened to him, shows a clear testamentary intention.
[The testator] named all seven of his living children […]. Such a distribution of his property, including all of his property, is consistent with a testamentary intention and not an inter vivos gift.”
As a result, the court found that the napkin was a valid holograph will and could be admitted for probate.
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