Just because the law allows for a testator to hand-write their own will does not make it a good idea, as a recent court decision shows.
Like laws in other jurisdictions, Ontario’s Succession Law Reform Act has long provided for the recognition of unwitnessed documents known as Holograph Wills. However, the requirements are surprisingly technical and tricky to meet for such a simple concept.
In the recent case of McKenzie v. Hill, an elderly brother failed in his application to the Ontario Superior Court of Justice to have a a handwritten document signed by his late sister declared a valid Holograph Will.
According to Justice Heather Williams’ decision, the brother had helped out his sister with her finances after she fell behind on condo fees, before a court declared that she was incapable of handling her own property and personal care, and she was moved to a retirement home.
After an improvement in her condition, the sister prepared a document resembling a will, in which she stated her desire for the transfer of her condo to her brother and give him “full control” of her finances, several years before her death in 2020.
However, the judge was not convinced that the sister’s document made a “deliberate or fixed and final expression of intention as to the disposal of property upon death,” as the law requires of Holograph Wills in addition to the fact that they are entirely handwritten and signed by testators themselves.
The sister’s failure to use the word “will” in the document – which was titled as an “agreement to transfer property” – also gave the judge some doubt that the instructions related to her death.
After rejecting the holograph will, the judge delayed the brother’s application for probate until a search for any other wills made by the deceased could be completed.
As simple as the idea seems, handwritten wills are a recipe for estate litigation, since any beneficiary who feels hard done by will be able to easily raise suspicions about its execution – sparking a potentially costly and lengthy battle over your assets. Even a harmonious family is likely to end up in court in some form, seeking confirmation that the handwritten document was indeed a valid Holograph Will.
The easiest way to avoid the hassle and expense of a court fight is to hire an experienced lawyer who can ensure their will is not only properly executed, but also accurately reflects their wishes.
The more complicated and valuable your assets are, the more essential it is to obtain sound legal advice before finalizing an estate plan.
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