The Problem With "Do-It-Yourself" Or Holographic Wills In Ontario

• Published date: 18 December 2023
• Law Firm: Devry Smith Frank LLP
• Author: Jillian C. Bowman and Leslie Haddock

As we described in a previous blog, testators can make two kinds of Wills in Ontario: formal Wills, which are typed, often drafted by a lawyer, signed by the testator, and require two witnesses to attest to the testator's signature; and Holographic Wills, which are simply handwritten by the testator and signed. Despite the lack of formality surrounding holographic Wills, they are just as legally binding as formal Wills in Ontario: courts have held that holographic Wills can revoke a prior formal Will¹ and revive a previously revoked formal Will.² Moreover, as holographic Wills don't require the services of a lawyer, they can be created quickly and at little to no cost. However, there is good reason why holographic Wills are not the preferred testamentary instrument of most Ontarians - this blog will highlight several problems which can arise with holographic Wills and lead to lengthy and costly disputes for your estate and beneficiaries.

(1) Legislative Requirements

While the legislative requirements surrounding holographic Wills are more relaxed than formal Wills, there are still mandatory elements that a holographic Will must have to be valid. Section 6 of the Succession Law Reform Act (SLRA) sets out the basic elements of a holographic Will:

6A 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.

First, a holographic Will must be entirely in the deceased's handwriting. It cannot be partially typed or a "fill-in-the-blanks" document. Testators also cannot use the doctrine of incorporation by reference to incorporate a typed Will into a holographic Will, as the court held in Re: Lacroix Estate.³ In Lacroix, the testator was hospitalized with cancer during the COVID-19 pandemic in 2020. Due to restrictions on visitors in the hospital, the testator could not execute the formal Will prepared by her lawyer. Instead, the testator attached the following handwritten document to her draft Will:

Tuesday, May 26, 2020

I, Rebecca Stephanie Lacroix, declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.

RSLacroix

The court found that this written document satisfied the SLRA requirements for a holographic Will; however, it alone was not a valid testamentary document, as it did not independently...