We all know the importance of having a will to ensure that our loved ones have their final wishes stated in writing to be carried out once they are gone.
A will or testament is a legal declaration whereby a person, the testator, provides for the transfer of his or her property at the time of passing.
The law has very specific requirements that are necessary to make a last will and testament legally enforceable. In Ontario, for example, a will must be in writing and it must be witnessed by two people who sign as witnesses and it must be signed by the testator.
This is the kind of will routinely prepared by a lawyer and it is usually signed and witnessed in a lawyer’s office and the lawyer is responsible for ensuring that all the legal requirements are met. This is the kind of will everyone should have and the cost is relatively small for the peace of mind and certainty it brings to all the family members.
However, there is another kind of testament or will that is recognized in Ontario, called a holograph will from the Greek word “holos” meaning entirely and “graphos” meaning written. A holograph will must be written entirely and exclusively in the handwriting of the testator. It does not need to be witnessed and it does not need to be in any particular form as long as it is signed by the testator and clearly expresses the testator’s intent to dispose of property on passing.
The law relating to a holograph will developed out of recognition that people in an emergency situation facing the imminent prospect of death should be able to create a valid will.
Perhaps the most famous instance of the use of a holograph will occurred in Saskatchewan in 1948 when a farmer named Cecil George Harris was accidentally crushed by his overturned tractor in a remote field on his farm. Before succumbing to his injuries, Harris used his pocket knife to carve the following notation into the fender of his tractor: “In case I die in this mess, I leave all to the wife. Cecil Geo. Harris.”
The fender was detached from the tractor and presented to a court which held that it constituted a valid holograph will. The estate was distributed in accordance with the wishes of Mr. Harris.
However the validity of a holograph will is not limited to emergency situations. It is not unusual for a person to write a holograph will in circumstances that are not extreme. Yet even a holograph will has certain requirements.
Recently, I had a client visit me regarding a document that she believed was a valid holograph will. She was a caregiver at a retirement home and was looking after an elderly woman who had no known family. The elderly woman stated she had no will and she wanted the caregiver to have her estate which amounted to about $80,000 in her savings account. Accordingly the caregiver wrote out a will for the woman and the elderly woman signed it.
I had to tell the caregiver that the will was not valid because the will was not entirely in the testator’s handwriting. She had only signed a document written out by the caregiver.
Accordingly the elderly woman died intestate and without a valid will.
Next time, I’ll talk about exactly what happens when somebody like the elderly woman dies without a will and where the assets go.
