As I’ve written previously, everyone should have a Will in place, ideally a Will drafted by a lawyer.Having your Will prepared by a lawyer helps ensure that it is executed properly and that it doesn’t contain any confusing ambiguities, attempt to do something that isn’t possible or legal, or ignore any important issues.
Although a lawyer-drawn Will is usually best, a Will prepared and signed without the assistance of a lawyer is not automatically invalid. Indeed, I have assisted executors many times with do-it-yourself Wills that were executed properly by the deceased.
In order to be valid, a typed Will requires, among other things, that the signature of the Will-maker be witnessed by two witnesses (there are certain rules about who can and cannot be witnesses).The vast majority of Wills prepared in lawyers’ offices are typed documents with two witnesses.A do-it-yourself Will might very well be typed, or perhaps partly typed and partly handwritten (such as a pre-printed “Will kit”), with two witnesses.However, it is also possible for a Will to be valid in Ontario without any witnesses at all.In order to be valid, such a Will must be written entirely by hand by the Will-maker, and must be signed by the Will-maker. Although formally valid, probating such a Will (called a “holograph Will”) presents some interesting issues.
In Ontario, in order for an executor to gain access to the deceased’s assets it is often necessary to “probate” the deceased’s Will.Probate is a procedure whereby the Court is effectively asked to confirm the deceased’s Will is legitimate.In the case of a lawyer-drafted Will, the probate application is often straightforward: The estate trustee files with the Court, among other things, an application form, a bank draft for the probate fee, the original Will, and an “affidavit of execution” signed by one of the witnesses to the Will.This affidavit of execution confirms that the Will was signed by the deceased and the witnesses in the proper way.Absent any objections, the affidavit is all the evidence the Court needs to be satisfied that the Will was signed with the required formalities.Lawyers usually (although not always) produce these affidavits of execution for the Wills they prepare.
There are no witnesses to a holograph Will.Accordingly, there can be no affidavit of execution.As part of the probate application, the executor must instead provide the Court with evidence that the signature and the handwriting on the Will are those of the deceased.
Establishing that the signature on a holograph Will is that of the deceased is often not difficult.The most common evidence provided to the Court in my experience is an affidavit from an employee at a bank at which the deceased held accounts.That employee compares the signature on the Will with the signature card the bank holds in its file and provides his or her opinion that the signatures match.
What can be a more difficult when probating a holograph Will is establishing that the handwriting on the document is that of the deceased.Ideally, a friend, family member, or professional acquaintance who is not a beneficiary under the Will, and who is familiar with the deceased’s handwriting, will provide an affidavit confirming his or her opinion that the handwriting is that of the deceased.Absent an objection, a Court will likely accept this evidence and grant probate.
Where there is no family member, friend, or other acquaintance who can attest to the deceased’s handwriting, executors may have to turn to a forensic handwriting expert to provide an opinion.
Probating a holograph Will is certainly possible and in fact provides some interesting issues for the estate lawyer to address. In the end, however, dealing with such a holograph Will is almost certain to generate more legal fees for an estate than it would have cost the deceased to simply retain a lawyer to prepare his or her Will.
