Here at NuLaw we regularly help clients plan for their future through our estates and trusts practice. One of the key parts of planning for you and your family’s future is through the creation of a valid will that states how you want your state handled upon your death. Of course, not everyone gets around to creating a formal will. Holograph wills are those that are 100% handwritten and signed by the person writing it. In these cases, no witnesses are necessary. However, just because a holograph will can be accepted by a court does not necessarily mean it will be accepted by a court. A recent decision from Saskatchewan illustrates this.

Names on a napkin

The will was written on a very thin brown paper napkin that the deceased had in front of him while eating at a fast food restaurant. On it, he listed the names of his seven children followed by the phrase “split my property evenly.” He then signed the will. One of this children, who had predeceased the father, was left off the will. Another child named on the will died in the interim. All parties involved said they agreed the estates of the deceased children should receive a share of the estate.

Holographic wills

In Saskatchewan, much like in Ontario, a holograph will can be wholly written by the testator and signed by them without any other formality or witnessing. With that being the case, what was the issue here?

One of the children (“MG”) was shown the will after the testator died. Another sibling told her the father wrote it on a napkin at a fast food restaurant when he thought he may have been having a heart attack. He didn’t die that day, and went on to live another 10 years or so. MG is skeptical that the will is real, stating she has been unable to verify whether it is the father’s handwriting, having nothing to compare it to. She also pointed out that her name was spelled incorrectly on the will. She also said that the father told her in the year before his death that he would not leave a will because “he wanted us kids to fight like he had to.”

One of MG’s brothers, (“RL”) said he drove his father to the restaurant on the day he supposedly wrote the will, arranging someone else to drive him home. He said that someone with is father at that time was present when the will was written, though no evidence was put forward to support this.

Another sibling (“PL”) testified that his father gave the will to one of the siblings and said “This is my will and I want you to keep this in case something happens to me.”

Determining whether the will is valid

The court found that the deceased had the testamentary capacity to write a will, and that the evidence provided by the siblings in support of the will was enough to determine that it was valid and could be admitted for probate.

While the will in this case was accepted, it illustrates how difficult it can be to prove that a holograph will is valid. To avoid this kind of trouble, contact NULaw in Toronto to obtain effective legal guidance with all of your estate planning needs, including wills and powers of attorney. An experienced estate lawyer can help you achieve your long-term goals and objectives, and plan ahead to protect yourself and your loved ones. Contact us online or at 416-481-5604 to book a consultation today.

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