Holograph Wills in Ontario – The Basics [video]

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This lecture explains the fundamental requirements of a holograph will in Ontario. It also outlines some of the scenarios in which a holograph will may be considered invalid.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

Show Notes:


Lecture Slides:

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Welcome everyone this is Amer Mushtaq from You Counsel. Today we’ll talk about Holograph Wills in Ontario. We’ll discuss what are the fundamental requirements of creating a Holograph Will and what are some of the circumstances in which a Holograph Will may not be considered valid.

We begin with our usual disclaimer, that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or contact a referral service – the Law Society of Upper Canada.

We’ll begin our discussion with talking about succession Law Reform Act. This is the legislation that governs the laws relating to succession. We’ll talk about Holograph Will, how is it defined in this legislation. We’ll talk about the basic requirements of the Holograph Will, we’ll discuss when under what circumstances a Holograph Will may not be considered valid, and we will end with some of our recommendations with respect to Holograph Wills.

Succession Law Reform Act is an Ontario legislation, if you are in another province, you must look at your own legislation, which by the way could be quite different than the legislation in Ontario. So, you want to make sure that you look at the right legislation and then understand what is contained in that legislation with respect to succession. As the name implies, succession Law Reform Act relates to laws relating to succession. Let’s look at the Succession Law Reform Act in Ontario. You type, “Succession Law Reform Act” in Google and you will find this legislation it’s available, and you will notice some of the topics that it covers. It talks about Testate Succession, Intestate Succession, Designation of Beneficiaries, Under Funded Plans, Survivorship Rights, and Support of Dependents.

So, one of the common misconceptions that is out there for people who do not understand the succession laws in Ontario, is that some people believe if they pass away without a will their estate, their property, will go to the state or the government and not be passed on to that person’s beneficiaries. That understanding is incorrect and as you can see, there is part two that deals with Intestate Succession, meaning that someone who has passed away without a will, without a valid will, what happens to their property, what happens to their assets? And that is governed under this part. And if someone who has died with a valid will that is covered by part one of Testate Succession. So, all of this is covered in Succession Law Reform Act, by all means, check out this legislation to get a good understanding of the laws relating to succession.

Now, a will is governed under Section Four, you may want to look at Section four of the S.L.R.A. let’s look at that. And it states that, “subject to Section Five” … and Six and we’ll talk about Section Six shortly … “a will is not valid unless at its end it is signed by the testator’s or by some other person in his or her presence, and by his or her direction. The testator’s makes or acknowledges the signature in the presence of two or more attesting witnesses present at the same time, and two or more of the attesting witnesses subscribe to the will in the presence of the testator’s”. What I want you to focus on in this specific section, is that the requirements of how a will is executed are very specific, and if you do not follow the requirements in their true form, then the will may not be considered valid. And I’ll give you an example with respect to Section Four, Sub 1, Sub B. Which says, “that the testator’s makes or acknowledges a signature in the presence of two or more attesting witnesses present at the same time”. So if, at the time, when the testator is going to sign, well the witnesses were present when everyone when people were reading that will and testator was reading the will. But when the testator is about to sign let’s say one of the witnesses goes to the washroom, and he is not present at the exact time when the testator was signing and then comes back, that will may not be considered valid. Because when the testator signed the document, signed the will, the two witnesses were not present at the same time.

So, it is not okay for the testator’s to sign in the presence of one witness and then that witness comes back and then subscribes his attestation, that’s not okay. So, the requirements are very specific with respect to Section Four, but it allows to create wills under Section Six. And Section Six is really Holograph Wills and we’ll talk about Holograph Wills.

Let’s scroll down and read Section Six, 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. So, that’s Section Six, and let’s break it down, so that you have clarity with respect to what a Holograph Will is.

Number one, it has to be wholly handwritten from top to bottom, it must be written in the handwriting, and the handwriting must be that of the testator, it cannot be that of somebody else, it has to have the handwriting of the testator. Okay, you do not require any witnesses, you do not require any attestation, and there is no other formality, as long as it’s handwritten by the testator and signed, there’s no other formality. So, it’s seems pretty straightforward but there are circumstances in which a Holographic Will will not be considered valid and let’s look at some of those circumstances, so, you get an understanding of how important it is to create a Holograph Will properly.

Partially handwritten Holograph Wills will not be considered valid. As I said from top to bottom it has to be handwritten will in the handwriting of the testator. And I’ll give you an example, with respect to the fill in the blanks forms, you may get a form from a shop that contains a will package and it contains fill in the blanks and all you have to do is fill out those blanks and then sign it and then you may assume that because I have fill in the blanks in my own handwriting, it will be considered a Holograph Will, that’s not correct. It has to be completely handwritten; filling out the blanks in a form will not make it a Holograph Will.

So, what happens when you have indeed filled in the blanks in a form when a court is reviewing that Holograph Will? What a court will do is it will sever the hand written portion of the will from the typed portion. So, assume that the typed portion is expunged, it doesn’t exist and the court will simply read the handwritten portions on their own. And if the court is able to determine the final wishes of the testator from those handwritten portions alone, then the court may enforce that portion as Holograph Will, but typed portions will not be considered, so, that’s how the court may treat a will that is created by filling in the blanks.

What about a situation when your handwritten Holograph Will refers to a typed written document? So, for example, your handwritten will states that, “with respect to my property in Muskoka, go open my drawer, and then you will see a document that states who that property goes to after my death”. Now the Holograph Will is referring to a typewritten document or is trying to incorporate wishes from a typewritten document – that’s not okay. A Holograph Will needs to stand on its own and you cannot incorporate a typed document in a handwritten will.

What about the placing of signatures? Normally, it is common sense that when you have completed the document, you fix your signatures at the end of the document which will be the case in Holograph Will, but there may be circumstances in which the testator has already written the Holograph Will and signed it and then the testator realizes that there was some property that he or she did not talk about, and then after the signature, the person writes down his or her wishes with respect to that property that will not be considered a valid part of the Hologram Will because it is after the signature. So, any wishes that are contained in the in the Holograph Will, they must end and then followed by the signature of the testator.

What about handwritten alterations to a typed will? A testator may have a good complete typed will that is properly created under Section Four of the S.L.R.A. A few years ago and prior to the testator’s death, the testator decides to alter some of the some of the wishes in the typewritten will. So, it may appear to the testator why not to simply alter in his own or her own handwriting the wishes because everything else is contained in that will, and it was properly executed so, it may be easier for the beneficiaries and everyone else to implement those wishes. But the problem with that is, that handwritten alteration is not a Holograph Will, it will not be treated as Holograph Will. So, what the testator’s must do is that the handwritten alterations must abide by the requirements of a typed will, which are contained in Section Four. So if they do not abide by the requirements of Section Four they will not be considered valid under Section Six of the S.L.R.A.

What about handwritten alterations to the Holograph Will itself? Any alterations that you make to the Holograph Will at the time that you had created the Holograph Will that will be considered valid. But what if the alterations are made afterwards at some time after the will was created? If those handwritten alterations are not signed, they are not initialed at least, or signed then they may not be considered valid. And the other problem that may arise with respect to the alterations of the Holograph Will is that the court may need to determine when those alterations were indeed made and how would the court go about determining that is a complicated issue. So, any handwritten alterations to a Holograph Will must also be signed.

So, these are some of the examples of when the things can get tricky with respect to Holograph Will and when it may not be considered valid. If you plan to create a Holograph Will you must keep these things in mind.

So, in conclusion. one thing that you want to carry from this lecture is that Holograph Wills are allowed, they are valid, as long as you create them in accordance with Section Six of the S.L.R.A. in Ontario. And if your circumstances require that creating a Holograph Will may be the only option, then you may not worry that your wishes will not be followed.

A word of caution that I do want to state here is that people fight over free money, free property, all the time. They fight over it for years and years. They fight over it until that free money or property is exhausted in legal fees and there are fights. So, there may be certain practical reasons why we must consider whether you want to create a Holograph Will or not. You do not want a situation where potential beneficiary who was expecting to be found in that will is left out and that person now challenges the validity of the Holograph Will and then all the beneficiaries are in this big fight about the enforceability or the validity of the Holograph Will.

Another practical implication you may want to consider is with respect to any institutions, that you may have to deal with regarding the enforcement of the Holograph Will. An example could be that if the Holograph Will states what happens to certain monies in a bank account, if you take a Holograph Will to the financial institution they will not sort of jump on it and give you the money right away, they may have their own legal process to look into it, because they may want some certainty from a court that that the Holograph Will is indeed valid… is indeed the last testament the last wishes of the deceased. So, you may end up as a practical matter, you may end up going back to the court anyways to get that seal of approval that the Holograph Will is valid and then you get it enforced with the institutions that are to be dealt with in that will.

So if it gets complicated if you think that it may be worthwhile for you to obtain legal advice with respect to your Holograph Will or even typewritten will I think it’s a good idea to get that legal advice. I hope that this gives you a good understanding of what a Holograph Will is, and if you need to create one how do you go about doing that. Please read Succession Law Reform Act if you need to understand a bit more, or contact a lawyer or a proper legal adviser if you wish to create a will. Thanks for watching.

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