— Irit Gertzbein, LL.B., TEP. This article first appeared on The Lawyer’s Daily website published by LexicNexis Canada Inc. on November 16, 2019

At first blush a holograph Will appears to be a quick fix to an otherwise pending intestacy, for free. Intestacy, the big bad wolf that comes knocking at the door when there is death without a Will, is thwarted by a holograph Will, without the legal cost associated with retaining a lawyer to draft the Will and without the subscription of witnesses to the Will’s execution. Or, so it is hoped.

Fundamentally, there are two types of Will: A formal Will and a holograph Will. The first must comply with numerous formalities of execution, hence the name a formal Will. The formalities of execution are set out in provincial succession statutes (for example, the Ontario Succession Law Reform Act, R.S.O. 1990, c. S.26  and  British Columbian’s Wills, Estates and Succession Act [SBC 2009] CHAPTER 13). A formal Will is typically drafted by a lawyer in typed print. The formal Will is executed by the dating and signing of   the testator, followed by the signing of two witnesses whose signatures attest to their presence during the testator’s signing of the Will. Except for the signatures of the testator and the two witnesses, the Will is wholly printed, with no handwriting appearing anywhere in the body of the Will. The second type of Will, the holograph Will, is not subject to the same formal rules of execution, hence it has earned itself the misnomer - an informal Will.

There is nothing informal about the holograph Will, other than its physical appearance. In its contents, the holograph Will must comply with, among other parameters, the following:

1.     It must be written by hand only, by the hand of the testator, only. There must be no other handwriting of anyone else on the document, if the holograph Will is to be valid.

2.     It must clearly identify who the testator, the author of the holograph Will, is.

3.     It must express clearly without ambiguity or vagueness, the intentions of the testator.

4.     It must clearly identify the person chosen to administer the estate, and, it must clearly identify the person or persons intended to receive the testator’s property.

5.     It must clearly identify the property being gifted, generally or specifically.

6.     It must be the testator’s complete, and final, testamentary dispositive intentions. The language used must be reflective of definitive intent, rather than tentative or temporary, intent.

7.     It must exhibit no writing or markings whatsoever after the testator’s signature.

Writing a holograph Will with the parameters listed above in mind to ensure validity, and only in circumstances of urgency to avoid intestacy, is recommended, if the alternative is not having a Will at all. The famous case of the holograph Will of Cecil Harris, a Saskatchewan farmer who etched with a knife his final testamentary dispositive intentions on the fender of the tractor which was laying on top of him, is illustrative. There is no ambiguity or tentativeness in the words “In case I die in this mess I leave all to the wife. Cecil Geo Harris”. In this case, the court held that the etching on the tractor constituted a valid holograph Will. The extreme circumstances in which Cecil Harris found himself prompted him to write words in a manner which achieved the carrying out of his last testamentary intentions.

However, there are many things which are difficult to achieve using a holograph Will, particularly in terms of estate planning. For example, while it is technically possible to create a testamentary trust in a holograph Will, a testator with no legal training, particularly in trusts and estates law, is unlikely to know the proper language required to splice the legal from beneficial interests with respect to property, in order to create a graduated distribution. This means that where the intended beneficiary is a minor (at date of testator’s death), the property intended for him or her would be held until he or she reaches the age of majority, at which time that beneficiary would receive the property outright. In this case, there is no mechanism to preserve some of the property for future generations, nor is there a mechanism to protect the property from creditors, after the beneficiary attains the age of majority. Aside from estate planning difficulties, using holograph Wills can give rise to technical or logistical obstacles. For example, while a formal Will is typically held for safe keeping in the drafting lawyer’s vault, the holograph Will may not be found for a long while after the testator’s death, or not at all. Even if found, it may be necessary to prove in court that the holograph Will was written in the handwriting of the testator, now deceased. Thus while holograph Wills certainly serve an important purpose, namely, to avoid intestacy and declare to the world at large the testator’s last testamentary intentions, they are best used in circumstances of urgency as a stop-gap measure, and not as a tool of estate planning, generally.