In most Canadian provinces, a will can be prepared in any form of written media. As long as it meets the legal requirements for will making, which mostly relate to signatures and ambiguity, then the will should be valid.
Handwritten wills are called holographic wills in Canada. They are quicker and easier to create than a formal will, but the potential for error and disputes among surviving family members is high. As such, holographic wills are intended for use only in emergency situations.
What Is a Holographic Will?
A holographic will is entirely handwritten by the will maker, called the testator. Filling out a template will form – the type of "fill in the blanks" document that is readily found on the internet – does not count. The testator must write his last wishes out in full and sign the document with his ordinary signature.
Other than that, there are no requirements for holographic wills. Unlike formal wills, the testator does not have to get witnesses to sign the will. This allows the will to be prepared very quickly in emergency situations.
In one famous case, an Alberta farmer who was trapped under his tractor etched his final wishes onto the tractor’s fender, leaving everything to his son. The will was found to be legal by the probate courts.
Read More: How to Write a Holographic Will
Is It Legal?
Handwritten wills are legal in Alberta, Ontario, Manitoba, Quebec, New Brunswick, Newfoundland and Saskatchewan, so in theory, a testator can create a handwritten will in these provinces. However, just because someone has created a holographic will does not mean the probate courts will accept it. There must be evidence to prove that the will maker wrote and signed the will himself and was not under any pressure from anyone else when he wrote it.
Since there are no witnesses to call on, the probate court will look at why the testator went down the holographic route, and will often look for supporting documents that prove the testator’s handwriting.
Who Should Write a Holographic Will?
A holographic will is not appropriate in every situation, and is not recommended unless the testator is in a genuine emergency situation. For example, a holographic will may be appropriate if the testator has suffered a serious accident, and it’s unclear whether she will pull through. If there is time to make a formal will, then it makes sense to do so.
By definition, holographic wills tend to be very short, last-minute documents. If the testator cannot write her entire wishes on a single page (or a tractor fender), then it’s probably not the best option. If the testator’s estate is large and could benefit from tax planning, or if there are complex family arrangements such as minor children, step children, divorces or family businesses, then the will maker definitely should go down the formal route.
How to Write a Holographic Will
As long as the will is written in the testator’s own handwriting and signed, then it will meet the legal requirements for a holographic will in the provinces that accept these documents. However, there are a few things the testator can do to give the will the best possible chance of passing probate.
- Identify the testator by writing his or her full name and address. The testator should confirm that he is “of sound mind” and that the document is intended to be his last will.
- Name an executor. This person will pay the debts and taxes and look after the estate when the testator dies. It should be a trusted friend or family member. Failing to name an executor means that the court will appoint one, which could lead to family arguments.
- Make specific bequests, such as leaving a wedding ring to a niece or $5,000 cash to a favorite cousin.
- Write a "residuary" clause. This is a gift of everything that’s left over after the bills are paid and the specific gifts have been made. Most people leave the residue to their spouse or children.
- Sign the will. Holographic wills must be signed by the testator, but they do not need need witnesses.
Above all, avoid ambiguity. The wording needs to be really clear if it to pass through the probate court. In one case, an Ontario resident left annual payments to a daughter “so long as she continues to reside in Canada.” The will did not specify how long she had to live in Canada for, or whether she could move abroad temporarily. The court rejected the will on the grounds of ambiguity.
References
Writer Bio
Jayne Thompson earned an LL.B. in Law and Business Administration from the University of Birmingham and an LL.M. in International Law from the University of East London. She practiced in various “Big Law” firms before launching a career as a commercial writer. Her work has appeared on numerous legal blogs including Quittance, Upcounsel and Medical Negligence Experts.