Estates & Wills & Trusts

Holographic will can create issues around testator's intention

By Kirsten McMahon, Managing Editor

It’s best to avoid a handwritten informal will because improper drafting may lead to the document not being valid and could create significant questions of interpretation, says Toronto wills and estates lawyer Lisa Laredo.

She tells that for a will to be valid it must be in writing and, with two exceptions, must be executed before two witnesses.

“One of those exceptions is a holographic will,” says Laredo, principal of Laredo Law. “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.”

By its very nature, she says a holograph will is an informal document made without legal or expert advice.

“The wording used in most cases will not conform to the language used in a formal will made with legal advice and may lack clarity,” Laredo says.

An applicant for the probate of a holograph will must satisfy the court that the document in question was drawn up wholly by the hand of the testator, she says. Evidence must be produced from someone with personal knowledge of the testator’s handwriting that the document, including the signature, was indeed made by the deceased.

“If there is evidence to establish that the document in question is wholly in the hand and signature of the purported testator, the next question is whether the document is, in fact, a will,” Laredo explains. “In many cases, the intention is clear from the text. However, in some cases, there may be a question as to whether the document is merely a personal note made by the maker or is intended to be a will.”

To constitute as a will, the document must intend to devise, bequeath or dispose of all the property to which the maker is entitled, whether in law or in equity, at the time of his or her death. In other words, she says the document must be a testamentary disposition, as opposed to an inter vivos disposition or merely a note to self.

“Normally, if it can be established that a document is in the handwriting of the purported testator and that the document is, in fact, a testamentary disposition, it will be admitted to probate,” Laredo notes.

Sometimes the most significant question concerning any will — holograph or otherwise — is what did the testator intend by their words.

“In a formal will, a court will look at the words of the document itself to interpret the intention of the testator. In the case of a holograph will, there is a high likelihood that the intent of the testator may not easily be derived from the words of the document and an inquiry must be held as to the circumstances surrounding the making of the will,” she says.

“In the real world, for reasons suggested above, few people make holograph wills because they are unfamiliar with the format and contents of a proper will," Laredo says. "Generally, a person making a will wants to do it in a way that ensures their estate is distributed in a timely manner."

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