Not infrequently, we are asked what is wrong with simply downloading from the internet or using a form that someone has purchased at a stationery store. What is wrong with simply doing a Will yourself by writing out your wishes on a piece of paper? The problems are many and it usually boils down to an individual being penny-wise and pound-foolish. The cost of doing a basic Will in our office, including Powers of Attorney, barely covers our own costs in preparing the documents.
There is a provision whereby a person can create their own holographic Will. A holographic Will simply means it is a document that is entirely in the handwriting of the willmaker on a completely blank sheet of paper, with no other writing or printing upon it and simply signed by the author. There is no need for witnesses and indeed there is no formal obligation for a date even. The question then becomes whether the document in question written by the willmaker does indeed meet the test of being a holographic Will. It would clearly help if the document began by saying this is my last Will, but more often than not even that formality is not reflected nor is it required.
In no way do we recommend holographic Wills, although sometimes in an end-of-life situation, we may guide our clients when there is absolutely no alternative.
The clear risk in using either Will kits or preparing your own holographic Will is that if you make a mistake, the few dollars that you saved in legal fees, will be wildly exceeded by lawyer’s bills incurred trying to interpret what you have done.
In another blog article, we talked about The Sweeping Changes coming effective January 1st, 2022 in which strict compliance is removed from being the law in Ontario and placing it in line with basically the balance of Canada. Ontario will also have a substantial compliance regime.
The test will simply be whether or not the court believes that a document that does not meet all of the required formalities is indeed a reflection of the deceased’s fixed and final expression of his or her intention regarding the disposal of their property upon death.
What will be different as of January 1st, 2022 is the substantial compliance rules intersecting with the long-standing test as to whether not the words of a willmaker and in this case a holographic Will meet the requirements that have now been loosened. Examples have been given of scribbled post-it notes, or crumpled pieces of paper with instructions noted on them.
The author has been involved in an estate in which a handwritten note signed by the willmaker and posted on her refrigerator, filled with spelling errors was determined to be a holographic Will. As a financial lesson, the assets of the willmaker were less than $20,000 and legal fees of $10,000 were necessary to formally prove the document as being a Will. I acknowledge and point to the excellent paper written by Clare Burns McNiven and Dana Chriszenfeld titled Strict Construction of Wills in the Testator’s Handwriting, which was part of the 2021 Estates and Trust Summit. Their paper is a learned and exhaustive summary of the laws across Canada that will likely be the foundation of the law evolving in the Province of Ontario on this new and thorny field.
I repeat. Substantial compliance laws are well intentioned but may simply create a mess for the benefit of lawyers
