Canada: The Problem With "Do-It-Yourself" Or Holographic Wills In Ontario

As we described in a previous blog, testators can make two kinds of Wills in Ontario: formal Wills, which are typed, often drafted by a lawyer, signed by the testator, and require two witnesses to attest to the testator's signature; and Holographic Wills, which are simply handwritten by the testator and signed. Despite the lack of formality surrounding holographic Wills, they are just as legally binding as formal Wills in Ontario: courts have held that holographic Wills can revoke a prior formal Will¹ and revive a previously revoked formal Will.² Moreover, as holographic Wills don't require the services of a lawyer, they can be created quickly and at little to no cost. However, there is good reason why holographic Wills are not the preferred testamentary instrument of most Ontarians – this blog will highlight several problems which can arise with holographic Wills and lead to lengthy and costly disputes for your estate and beneficiaries.

(1) Legislative Requirements

While the legislative requirements surrounding holographic Wills are more relaxed than formal Wills, there are still mandatory elements that a holographic Will must have to be valid. Section 6 of the Succession Law Reform Act (SLRA) sets out the basic elements of a holographic Will:

First, a holographic Will must be entirely in the deceased's handwriting. It cannot be partially typed or a "fill-in-the-blanks" document. Testators also cannot use the doctrine of incorporation by reference to incorporate a typed Will into a holographic Will, as the court held in Re: Lacroix Estate.³ In Lacroix, the testator was hospitalized with cancer during the COVID-19 pandemic in 2020. Due to restrictions on visitors in the hospital, the testator could not execute the formal Will prepared by her lawyer. Instead, the testator attached the following handwritten document to her draft Will:

The court found that this written document satisfied the SLRA requirements for a holographic Will; however, it alone was not a valid testamentary document, as it did not independently dispose of any property.⁴ Moreover, as the draft Will was typed and not handwritten by the testator, it could not form part of a holographic Will.⁵

Second, a holographic Will must be signed by the testator. Section 7 of the SLRA states that the testator's signature should be at the end of the Will, whether formal or holographic. In general, any dispositions or instructions underneath the signature, or inserted after the document was signed, will not be effective.⁶

However, since Ontario's shift from a strict compliance regime to a substantial compliance regime in January 2022, courts have the discretion to declare a Will valid even if it does not meet all of the legislative requirements. Under section 21.1(1) of the SLRA, if the Superior Court of Justice is satisfied that an improperly executed document sets out the testamentary intentions of a deceased, they can, on application, order that the document is valid and fully effective, as if it had been properly executed. Despite these reforms, section 21.1(2) of the SLRA maintains Ontario's ban on electronic Wills and codicils, per section 31(1) of the Electronic Commerce Act.

(2) Testamentary Intent and Language

In addition to the legislative requirements in the SLRA, there is also a common law requirement that a holographic Will must contain "a deliberate or fixed and final expression of [the testator's] intention as to the disposal of property upon death."⁷

This intention does not have to be expressed in explicit testamentary language; it can be inferred from the context of the document itself and its contents. For example, the court in Laframboise v Laframboise held that a document was a holographic Will, despite its use of "Informal" in the title of the document, failure to appoint an estate trustee, and failure to use traditional testamentary language. Here, after reading the document as a whole, the court found that the use of "Informal" referred to the fact that the Will was not typed, witnessed, and created with the assistance of a lawyer.⁸

Similarly, the court has also inferred intention from the surrounding context of the document. In Rezaee (Re), at a dinner party, the testator wrote out and signed the following document:

The court found that this was a valid holographic Will and showed testamentary intent, from the context of the testator being diagnosed with terminal cancer and undergoing cancer treatments for a year and a half at the time of writing the document.⁹

This is not always the case; the court in McKenzie v Hill held that the following handwritten document created by the deceased was not a valid holographic Will:

Here, the court could not find any testamentary intention: the document does not refer to the deceased's death, suggest that the transfer was to be triggered by the deceased's death, and is titled as an "Agreement", not a Will.¹⁰

As indicated in the cases above, absent clear testamentary language, holographic Wills are left open to challenges from interested parties and interpretation by the courts. Even when the Wills were ultimately upheld, the proceedings to validate the Wills resulted in a significant cost and delay to the administration of the estate.

Moreover, as many holographic Wills are prepared by laypeople without a thorough understanding of the law, issues of uncertainty, ambiguity, and omission may also arise and require judicial intervention. For instance, in Laframboise, the testator failed to appoint an estate trustee. Testators may also fail to account for certain outcomes in their estate, such as if a beneficiary pre-deceases them if there are not enough assets in the estate to cover the bequests, and what happens to the residue, or remainder, of the estate after the specific bequests.

(3) Capacity Challenges

All testators, whether executing a formal or holographic Will, must have testamentary capacity. Hall v Bennett Estate states that a testator must have a "sound disposing mind", which requires that they:

• understand the nature and effects of a will;
• understand the nature and extent of their property;
• understand what they are disposing of under the will;
• remember the people they are expected to benefit under the will; and
• where applicable, understand the nature of claims that may be made by people they excluded from the will.¹¹

While testamentary capacity is assumed absent evidence to the contrary, problems can arise when the circumstances surrounding the creation of a holographic Will are suspicious or raise questions about the testator's capacity. In Laframboise, after separating from his wife, the testator prepared a holographic Will, leaving only his wedding ring and wedding pictures to his wife, and then took his own life. His wife challenged the Will on the basis of lack of testamentary capacity. The court rejected this argument. The court found that the testator was depressed, but that there was no evidence that the depression impacted any of the factors laid out in Hall above.¹² The letters to his wife and family before his death "indicate a full appreciation of what he was about to do and why he felt compelled to do it...[and] indicate a tortured mind, not a deranged mind."¹³

Likewise, in McGrath v Joy, after a day of heavy drinking and marijuana use, the testator wrote a suicide note and took his own life. In the note, the testator stated that he did not want his wife to get anything under a previous Will he drafted in 2016, and asked his named estate trustee to make sure that this happened. Here, the Court of Appeal found that the note was a valid holographic Will and that the testator had the requisite capacity, as he met the factors in Hall.¹⁴ The Court found that the application judge erred in not finding that the testator had capacity by basing their opinion on the testator's use of drugs and alcohol, and not the legal principles set out in Hall.¹⁵

Although the testators in Laframboise and McGrath were ultimately found to have capacity, the circumstances surrounding the creation of the Wills provided a sufficient basis for a Will challenge. Without a drafting lawyer to attest to the testator's capacity, the courts were also left to determine capacity based on expert evidence and witness testimony, both of which added time and cost to the proceedings.

Conclusions

The ultimate purpose of a Will is to provide you with peace of mind that your beneficiaries and assets will be properly taken care of after your death. While a holographic Will seems like an easy, cheap, and convenient way to do so, particularly with the new substantial compliance regime, it comes with significant risks which could lead to costly and lengthy litigation and your final wishes being disregarded. As is the case with most legal matters, the safest option is to consult with an experienced Wills and estates lawyer to ensure that your Will is clear, certain, and enforceable.

Footnotes

1. For example, see Niziol v Allen, 2011 ONSC 7457.

2. For example, see Estate of Harold Franklin Campbell (Re), 2023 ONSC 4315.

3. 2021 ONSC 2919.

4. Ibid at paras 25-26.

5. Ibid at para 26.

6. Succession Law Reform Act, RSO 1990, c S26, s 7(3).

7. Bennett v Toronto General Trusts Corp, 1958 CanLII 49 (SCC) at p 396.

8. 2011 ONSC 7673 at paras 14-16 [Laframboise].

9. 2020 ONSC 7584 at para 30.

10. 2022 ONSC 4881 at paras 31-32.

11. 2003 CanLII 7157 (ON CA) at para 14.

12. Laframboise, supra note 8 at para 21.

13. Ibid at para 25.

14. 2022 ONCA 119 at para 51.

15. Ibid at para 67.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.