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One of Canada’s most famous Wills began with a tractor.

Cecil George Harris was a Saskatchewan farmer who, on June 8, 1948, found himself trapped under his tractor while doing field work. He was found, legs crushed under its wheel, and died as a result of his injuries. After his death, however, another discovery was made: he had written a note on the tractor’s fender. His writing was succinct and stated that “In case I die in this mess” his estate should go “all to the wife.”

Strange though it may sound, this writing was a valid Will. A local lawyer assisted in ensuring the Will was duly submitted to the court with affidavit evidence to confirm the Will was indeed written by the late Mr. Harris, and probate was granted to the Court, ensuring that Mr. Harris’s wife was able to inherit the entirety of his Estate.

Holographic Wills

This case is an example of a Holographic Will, and by and large what was true in Mr. Harris’s time is true today. Holographic Wills are recognized in Ontario, though they are not recognized in some jurisdictions such as British Columbia and Prince Edward Island. Section 6 of Ontario’s Succession Law Reform Act (SLRA) describes the requirements for such a Will. It must be written entirely in the testator’s own handwriting and be signed by them at the bottom of the document. Such a document does not need to be attested to by two witnesses, as is usually the case with a Will.

Provided that a piece of writing meets these requirements and shows what the Courts have referred to as a “fixed and final intention” to dispose of property after death, the Will can take many forms. Holographic Wills will typically require supporting affidavits, giving evidence that the handwriting is indeed that of the deceased person, in order to be certified by a Court. Nonetheless, they can be a useful tool for someone who lacks the time or ability to consult with a lawyer before death.

McGrath v. Joy Case Study

While the case of Mr. Harris was a fortunate one for his family, other cases of holographic Wills can cause a good deal of uncertainty and family difficulties. Early this year the Ontario Court of Appeal decided just such a case in in McGrath v. Joy, 2022 ONCA 119. In this case, the late Mr. Joy had committed suicide in 2019, and before dying he wrote a suicide note stating that any bequests to his wife in his previous Will (dated 2016) should be treated as void and everything should go to his stepson and his grandson.

This suicide note met the formal requirements of a Holographic Will, being written in the deceased’s own handwriting and signed by him. It also gave clear instruction about his Estate. What was contested, however, was Mr. Joy’s mental capacity to write a Will. Evidence was given that he had been drinking alcohol and smoking cannabis that day and appeared intoxicated. The handwriting in his note (described as a “profanity laced tirade”) was sloppy, but not illegible. While Mr. McGrath’s wife, who challenged the validity of the Will, was successful at trial. Nonetheless, the Court of Appeal found that he did understand what he was doing, the nature and extent of his property, as well as remembering the persons (namely his wife) who he might be expected provide for. Despite the suspicious circumstances surrounding the note, he had capacity to write a Will.

As we see from McGrath v. Joy, a piece of writing written under very unfortunate circumstances can still have the effect of revoking previous Wills and changing the disposition of an Estate. Moreover, family members in this case expended a substantial amount of time and effort in litigating the matter, which is precisely the sort of situation that most people preparing a Will take pains to avoid. In short, Mr. McGrath’s Will was valid, but putting it into effect was a messy experience for his loved ones.

For better or worse, the requirements of a Holographic Will are easy to meet. Nonetheless, there can be a fair amount of ambiguity about some pieces of writing. For example, if a deceased person had left a list of gifts they intend to give, we may very well ask whether this was intended to have the same effect as a Will or if this was simply a note to themselves of what they might want to do later on. What about a letter to the deceased’s lawyer indicating changes the deceased wanted to make? Generally this type of writing should not qualify as a holographic Will, but it may still have the potential to create uncertainty.

Issues with Holographic Wills

Recent amendments to the SLRA may very well increase this type of uncertainty. Section 21.1 which went into effect in January 2022, allows the Court to order that a piece of writing is valid as a Will even if it does not meet the minimal requirements of a Holographic Will. The Court must simply find that such writing “sets out the testamentary intentions of the deceased”. While electronic documents, such as an email, for example, still do not qualify, a wide range of potential Wills might be brought into question. The same argument from McGrath v. Joy about a deceased person’s intentions and mental capacity may play out in new circumstances.

Aside from issues of uncertainty, another issue with Holographic Wills is simply that they are often written by laypeople rather than a lawyer. As such, language might be unclear when it needs to be interpreted by an executor or disputed in Court. A testator might also fail to consider all eventualities, for example to provide a gift-over to someone else in the event that a beneficiary has died unexpectedly. This all may have the consequence of the Last Will disposing of a deceased person’s estate differently from what they intended.

It is important to ensure that a testator’s final wishes are respected, and in certain circumstances a Holographic Will may be the only option, but given the potential concerns of uncertainty, errors, and omissions, a formal Will prepared with a lawyer’s advice will almost always be preferable. It is best to keep ambiguous written directions to a minimum and leave the preparation of materials for estate planning to a professional.


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