06 Aug What is a Holographic Will?
In the province of Ontario, we recognize two types of Wills: Formal Wills and Holographic Wills. The first, a Formal Will, is the most common type of Will. This document is usually typed out and drafted by a lawyer, and dated and signed with two witnesses present. The latter, a Holographic Will, is a completely handwritten document, in the handwriting of the testator, that is simply dated and signed by the testator. The Holographic Will does not require witnesses to be present and can be as simple as a single written sentence, provided it is dated and signed by the testator. Section 6 of Ontario’s Succession Law Reform Act states:
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.
Pros and Cons of a Holographic Will
When compared to a Formal Will, a Holographic Will seems relatively straightforward, so why don’t more people use them? In the case that a handwritten Will is left behind, the issues that arise are often far greater than the ease of writing one.
Holographic Wills must be wholly written in the testator’s handwriting. They cannot include typed portions that are signed, nor can they incorporate other documents that are typed. Any portion of the Will that is not handwritten and followed by a signature will not be considered to be valid. If at any point the testator updates their Will and forgets to initial or date the alteration, complications can emerge, and interpretation by lawyers and a court can be costly.
The legibility of the Holographic Will can also be a concern. The handwriting must be decipherable in order to be approved by the courts. It is also advisable that the testator leave enough evidence to confirm his or her intentions in the event there is difficulty deciphering the Will. This can be in the form of old handwritten notes or letters. If there is no written evidence to guide the court in the circumstance of a challenge, then it could result in being a battle between the children or other beneficiaries of the deceased asserting their own (biased) recollections of the intent of the testator.
Extremely verbose or too succinct wording in a Holographic Will can cause difficulty in interpretation of the Will. The final wishes of the testator have to be comprehensively written, expressing a deliberate and explicit intention in their choice. If multiple copies or drafts of the Will are found, this can also be problematic in determining the final disposition.
Sound of Mind and Body
Furthermore, it must be proven that the testator was not under duress by another person at the time of composing their Holographic Will. Beneficiaries should not be present at the time of composition, and a trusted source must know where it is stored. Additionally, evidence that the decedent was of sound mind when writing the Will is crucial in order for the Will to be validated. Because there is no witness or notary involved in writing a Holographic Will, it is more difficult to prove the testator had the capacity or was not unduly influenced.
Stewart Esten Wills
To avoid a potentially stressful and expensive estate settlement, it’s advisable to have a Formal Will completed by a lawyer. Holographic Wills may seem like a quick and inexpensive option, but the reality is that they can take a long time to process, cause family disputes, and result in expensive legal fees. While there is an initial cost involved in obtaining a formal will, the benefits far outweigh the potential cost of proving and administering a Holographic Will. Contact Stewart Esten today to assist you in all aspects of your estate plan, including a Formal Will.