Making a Will is one of the most important things a person can do before they die. It involves documenting everything they have acquired throughout their lifetime and making plans for their posthumous management.
An important document like that would probably look all fancy, typed up, and created by a professional attorney, right? You might be surprised to learn that not all Wills are typed out, witnessed, or created in a lawyer’s chambers.
What is a Handwritten Will?
A handwritten Will is a document signed and written out by an individual dictating how their estate and general affairs should be managed after death. Unlike most Wills, these Wills are made in the handwriting of the testator (person making the Will) and not typed out on paper.
Now, the concept of Will-making was in operation long before the advent of computers and modern word processing methods, meaning that legal Wills had been written on paper for a long time.
So, what is the big deal with handwritten Wills, then?
Most handwritten Wills do not meet all the legal requirements for a typed Will. For a Will to be deemed legally valid, it has to be made in the presence of two witnesses, who will also append their signatures as proof.
A handwritten Will that does meet the witness requirement is known as a holographic Will.
The issue of whether or not a holographic Will would be deemed valid by a probate court depends on the province. Most provinces require a handwritten Will to be witnessed, while some do not.
Is a Handwritten Will Valid in BC?
A handwritten Will is generally valid in most provinces in Canada as long as it fulfills the witness requirement. In cases of ambiguity, or if the validity of a handwritten Will is being questioned, the Will would be subjected to a tedious probate process.
If a person’s handwritten Will is declared invalid, their properties will be managed according to a recent Will they previously made. Without one, their estate and affairs will be distributed according to provincial intestacy laws.
Although intestacy laws often favor spouses and children, legally unrecognized family members like stepchildren, friends, and unmarried partners would end up receiving nothing. Also, due to the expensive and lengthy nature of probates, the value and quantity of a person’s estate would be significantly reduced.
In What Provinces are Holographic Wills Valid?
A holographic Will (handwritten Will that does not meet the witness requirement) is valid in any of the following provinces: Alberta, Ontario, Manitoba, Quebec, New Brunswick, Newfoundland, and Saskatchewan.
Holographic Wills are not legally accepted in provinces like British Columbia and Prince Edward Island.
However, if the Will was created in another province where Holographic Wills are accepted, and the testator’s estate is in BC, then a court might consider the Holographic Will valid.
So really, whether or not a holographic Will would be valid depends on the province it was created in and the decision of the probate court.
Proving a Holographic Will
Holographic Wills are very problematic. Since the testator is usually dead or incapacitated, it is difficult to prove whether the piece of paper or inscribed object was intended to be a Will or just some random thoughts they penned down. There’s also the issue of whether they made the Will voluntarily or under duress. It could also be a fraudulent imitation of their handwriting.
A popular real-life scenario involving holographic Wills happened in Saskatchewan, where a dying farmer scratched his final wishes on his tractor. His holographic Will was upheld by a probate court because there was no ambiguity nor doubt about his wish, nor was there any evidence to the contrary that the Will was not made by him.
His words: ”In case I die in this mess I leave all to the wife. Cecil Geo Harris”
Some provinces dictate that the testator’s signature be present to validate a holographic Will. To prove this, handwriting experts and formal documents would be needed, to examine the signature found on the holographic Will and confirm that the testator indeed made it. An illegible Will that was scribbled in a rush can often be difficult to prove.
Also, the manner the Will was drafted would convince the court that it was indeed made and intended by the testator. A holographic Will must specify beneficiaries to the testator’s estate. It should name who would receive what and, if possible, why.
Before a Will can be drafted, it must be shown that they are fully aware of what they are doing (also known as Testamentary Capacity). It is difficult to prove Testamentary Capacity from a holographic Will. So, the more detailed a holographic Will is, the likelier it is to convince a probate court that the testator was of sound mind when he made the Will.
Handwritten Wills that appear unusual, (like excluding a beneficiary who should be included, or written in a manner that questions the mental capacity of the testator) might raise the issue of Testamentary Capacity.
It is also upon the probate court to prove whether the holographic Will was a representation of the testator’s final wish. It is difficult to prove if the testator had made another Will and the holographic Will was merely a draft or an outdated version. Based on precedence, a holographic Will can only be recognized if it contains a final, premeditated and clear instruction of how the testator wants their properties to be managed after death.
Should You Make a Handwritten Will?
By now, you must have understood how stressful it is to prove a holographic Will in court. It is recommended to seek professional advice before creating a Will.
There usually is no problem with handwritten Wills, as long as they are not ambiguous and are duly witnessed. Holographic Wills on the other hand should only be created in life-threatening situations, where the testator is desperate and has no time for formalities.
While a holographic Will might be the only option in unique situations, it might be deemed invalid and would not reflect the maker’s wishes.
Even though a handwritten Will is valid if properly made, it is better to contact an estate planning lawyer for assistance.
A professionally created Will may seem like stress, but it is better than leaving your loved ones stranded because you made some error and rendered your Will invalid.
Speak to an Experienced Estate Planning Lawyer
An experienced estate attorney will not only create a concise Will that will fit all your needs, but they will also make sure your Will conforms to provincial laws and requirements.
If you are confused about how to make a valid Will, or you have general legal estate problems, speak to the Saanichton Law Group today and let our team of knowledgeable estate planning lawyers provide the best answers to your problems. Call us today at 1-250-544-0727 to schedule a consultation.
