On a few different occasions, I’ve been asked whether one can make a valid Will by writing their wishes on a napkin or in an email, for example. The former may qualify as a valid Will in Ontario, but the latter would not. The Succession Law Reform Act (the “Act”) is the legislation that sets out why.
One can make a valid Will by simply writing down their testamentary wishes (whether it be on a napkin, piece of paper, or tractor*) and signing off on this. This is called a holograph Will. Unlike non-holograph Wills, no witnesses are required.
*This actually happened – after an unfortunate farming accident, the deceased had carved his testamentary wishes (i.e. “leave everything to my wife”) into his tractor, and this was found to be a valid Will.
To qualify as a valid holograph Will, the Will must be wholly in the handwriting of the person making the Will (the “testator”) and must include that person’s signature. The signature must be placed at, after, following, under or beside or opposite to the end of the Will so that it is apparent on the face of the Will that the testator intended to give effect to the Will by signing it. The fact that the Will must be signed by the testator to be valid is important whether or not the Will is a holograph Will. As I often confirm for clients, their Wills are not valid until they are signed by them, regardless of the fact that their intentions have been otherwise documented (in my notes and/or theirs).
In comparison, an email is not in a testator’s own handwriting and therefore does not qualify as a valid holograph Will.
Risks Associated With Holograph Wills
Of course, drafting one’s own Will carries its risks. It is important that a testator’s intentions are unambiguous. There are a number of established clauses and terms in estates law that help avoid ambiguity surrounding a testator’s intentions. Without the use of precise language, there is an increased likelihood that there could be issues interpreting what a testator’s true intentions were. Oftentimes the Court will need to get involved to weigh in on this. The cost to an estate to go to Court typically far exceeds the cost of having a Will professionally drafted in the first place.
Even if a testator’s wishes are clear, they may be incomplete. For example, if a testator has only made reference to how some of her property is to be dealt with upon her death, this will create a partial intestacy whereby the distribution of the remainder of the property will have to be governed by the Act, and this distribution scheme may not reflect what the testator would have wanted.
Another potential issue with drafting one’s own Will can be locating it. If the testator is the only person that knows this Will exists, it may never be found by the person(s) administering the estate and thus the wishes set out in the document will never be carried out. When preparing a Will with a lawyer, there will be a record of that Will on file with the firm and witnesses that have attested to seeing the testator sign the Will in their presence. Moreover, when someone dies and an executor/family member is unsure of whether the deceased had a Will a search can be done to see whether any lawyers in Ontario have a Will on file for the deceased. Some law firms (Mills & Mills LLP being one of them) will store original Wills in a fire-safe to ensure that the Will can be located when needed, and is in safe-keeping in the meantime.
When a Holograph Will May Be Helpful
With these risks in mind, a holograph Will may be useful in limited circumstances. In addition to the tractor example provided above, a holograph Will may make sense if one knows that her current Will does not reflect her current intentions, but does not have time to have a new Will prepared and signed before going on vacation, going in for surgery, etc. In this case, she may feel that it would be better to set out her new wishes in her own writing rather than have the terms of her current Will apply. While it is possible to simply revoke the current Will without making a replacement Will, the Act would govern how the estate would be distributed upon her death. While the risks mentioned above would still be relevant, for some this option may still be preferable to the potential that an old Will would apply, or if no Will, that the Act would govern how assets would be distributed upon death.
In summary, it is possible for one to write a valid Will on a napkin (among other things), but not in an email or text, or by simply telling someone else (including her lawyer) her wishes. Nonetheless, it is typically preferable to have your Will prepared professionally in an effort to avoid potential problems that may accompany drafting your own Will.
At Mills & Mills LLP our estate lawyers can assist you in drafting and executing a carefully considered Will as part of an overall estate plan that best suits your needs. To learn more about how we may be able to assist you please reach out to us at (416) 863-0125.