DUE EXECUTION OF A WILL - PART V
Today, I will touch briefly on the execution of other types of wills. Significantly, it should be noted that the requirement of two or more attesting witnesses does not apply in the case of the will of a member of forces on active service, or in the case of a holograph will.
A "member of forces on active service" is defined in the Succession Law Reform Act ("SLRA") as any person who is:
(a) a member of the Canadian Forces placed on active service under the National Defence Act (Canada);
(b) a member of any other naval, land or air force while on active service; or
(c) a sailor when at sea or in the course of a voyage. Such a person may make a will by "a writing signed by him or her or by some other person in his or her presence and by his or her direction without any further formality or any requirement of the presence of or attestation or signature by a witness".
In addition to a "soldier's will", special allowance is made in Ontario for holograph wills. To be a valid holograph will, the will needs to be wholly in the handwriting and signature of the testator. The requirement that the holograph will be "wholly" in the handwriting of the deceased means that a will that is typewritten by the deceased will not qualify as a holograph will. Similarly, the testator cannot simply sign a document handwritten by another.
The SLRA does not specify the nature of the writing, but only that the document be in writing. Courts in other jurisdictions have accepted wills written on eggshells, or scratched on the fender of a tractor. Stationer's wills give rise to much litigation, as they are often improperly witnessed, if at all. These wills, usually purchased as part of a "do-it-yourself" will kit, are partially printed forms that require the testator to fill in certain blanks. The kits usually contain detailed instructions with respect to execution.
However, as with wills executed before a lawyer, mistakes can and do happen. In such cases, the testamentary intent may be salvaged if the will can be considered to be a holograph will. The court will review the document and read the handwritten portions in order to determine whether a dispositive intent can be gleaned. If so, that portion of the document may be admitted as a holograph will. Such a reading can also save a gift to a witness. Bequests to a witness of a will are void under section 12(1) of the SLRA (subject to a saving provision). However, if a witness's signature is seen as superfluous, as in the case of a holograph will, then such a gift will not be rendered void.
Have a good day. Paul Trudelle --------
