Legal Blog

Holograph Will

A holograph will is referenced in section 6 of the Succession Law Reform Act. Unlike a normal will, which has specific formalities such as the signatures of two witnesses, a holograph will may be valid without any formalities if it is made wholly in the testator’s own handwriting and the testator signs it. A holograph will, however, is no different from an ordinary will in that the testator must have a sound disposing mind (i.e., have testamentary capacity to make the will) and must not be signing the will as a result of undue influence by another person. Some of these issues were dealt with in Re Lacroix Estate 2021 ONSC 2919 and Joy Estate v. McGrath, 2022 ONCA 119.

Lacroix

In this case, a lawyer was faced with a difficult situation and attempted to deal with it as best she could. She had instructions from a client in the final stages of cancer, but could not attend at the hospital because of COVID-19 restrictions. The lawyer therefore prepared a typewritten will and delivered it to the testator, together with instructions on how to prepare a holograph will. The testator hand wrote and signed a document that referenced it as her last will; it incorporated, as part of the holograph will, the typewritten will, which she referenced and initialled for identification purposes. The testator died shortly thereafter.

The lawyer then applied to probate the holograph will, including the incorporated typewritten will. The judge refused to do so. Section 6 of the SLRA states that the will must be “wholly by his or her own handwriting and signature.” The judge agreed that the language in the holograph document showed a deliberate and final expression of the testator’s intention to dispose of property in accordance with the incorporated will, but noted that the holograph document did not stand alone as a valid testamentary will because it did not independently make a disposition of property. The judge applied prior jurisprudence to the effect that a holograph will could not incorporate by reference a typewritten document because, by its very definition, a holograph will must be wholly in the testator’s handwriting.

Joy Estate

There was no joy in this case. The testator spent the day before his death working on his boat, drinking alcohol, and smoking hash. He then committed suicide. A two-page, handwritten, and signed note (the “Note“) was found in the pocket of his shorts. In the Note, he apologized for killing himself and, using profane language, noted that his wife drove him to suicide; he also asked his business partner, whom he had named as his executor in a 2016 will, to make sure that wife did not get anything. He went further and stated that anything in his 2016 will “with her name on it was VOID” and that all his property was to go to his stepson and grandson.

The issue in this case was not whether the Note was a valid holograph will; it was. The issue was whether the testator had testamentary capacity to make a will when he wrote the Note.

Capacity

The court noted the following

“The legal principles for determining testamentary capacity are long-standing… established by the Supreme Court of Canada in (1902) … and have been applied ever since… A testator must:

1. understand the nature and effect of a will;

2. recollect the nature and extent of his or her property;

3. understand the extent of what he or she is giving under the will;

4. remember the people that he or she might be expected to benefit under his or her will; and

5. where applicable, understand the nature of the claims that may be made by persons he or she is excluding under the will.”

The court analysed the facts and concluded as follows:

• a person’s use of alcohol or drugs does not necessarily mean that the person lacks testamentary capacity. In this case, there was no evidence that the testator had a disorder or condition that would support that finding. He had no mental health challenge for which he was being treated. He continued to function at work and, during a video call the day before his death, he was said to have been drunk, but no one indicated that he was irrational, delusional, incoherent, or abnormal.
• An almost illegible, sloppy, and profanity-laced diatribe does not decide an issue of testamentary capacity. The court noted that it was able to read the Note, which meant that it was not illegible, and that the evidence showed that the testator often used profanity in his spoken and written communications. The Note indicated that he was angry with wife, but that did not support an inference that he lacked testamentary capacity.
• The court also reviewed the underlying facts, with which we shall not bore you, and concluded that testator, when writing the will, knew the nature of a will, knew the nature and extent of his property, understood the extent of what he was giving, and remembered the persons who might be expected to benefit (or not) under his will. The testator would not have been concerned about any claim wife may have had because the matrimonial home was in her name and she was the more financially successful of the two.

The court therefore concluded that the holograph will was valid and admitted  it to probate.

Costs

On the opening of the Brampton courthouse in the names of William Davis and his father, Bill Davis gave a tongue-in-cheek recollection of advice given to him by a senior lawyer when Bill Davis was but a young lawyer: never fritter an estate away on the beneficiaries.

Traditionally, in estate litigation the parties’ costs were paid from the estate. There were winners and losers in the litigation, but, win or lose, no one was out-of-pocket for legal fees and disbursements. The policy considerations behind this approach were the need to (i) give effect to a valid will reflecting the intention of a competent testator and (ii) ensure that estates were properly administered.

The Court of Appeal changed that approach in 2005 when it became apparent that courts had to guard against allowing their processes to be used to unnecessarily deplete a testator’s estate. Under the changed approach, the normal rules applicable to civil litigation (i.e. in effect, loser pays winner) apply unless one or more specific public policy considerations are involved. These considerations are:

• The testator caused, in whole or in part, the difficulties or ambiguities that gave rise to the litigation; or
• There are reasonable grounds upon which to question the execution of the will or the testator’s capacity in making the will.

In Joy, the court held that the public policy considerations did apply and that the application was necessary to ensure that the estate was properly administered. The testator wrote the Note in suspicious circumstances creating reasonable grounds on which to question the testator’s capacity and, because of those circumstances, it was unclear whether his estate would be administered according to the Note or the 2016 will. The court therefore allowed the costs of the various litigants to be paid from the assets of the estate.

The court also allowed costs of the appeal to be paid from the assets of the estate. It held that the public policy considerations that applied to the original application continued to operate on the appeal.

Costs Upshot

When litigants are acting reasonably with an arguable dispute that arises out of the manner in which a testator has created the will, costs will be paid from the estate. If, based on the facts, a losing litigant does not act reasonably, the losing litigant can expect to pay, at minimum, the partial indemnity costs of the winner and will receive no reimbursement from the estate.

 

Image courtesy of danaos-de.

Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.