When you conjure up the image of what a "Will" is supposed to look like, you likely imagine an impressive formal document with large cursive script that proudly declares "This is the Last Will and Testament of" at the top. The kind of document that would not look out of place in a 16th century manuscript, or in an old Victorian library with dust on top. At the very least, you likely imagine a formal document created to comply with rigid rules about its execution and who must be there to witness it.
What you may not know however is that while this formal will still has an important place in our laws, it is not the only kind of will that the law will recognize. Holographic wills are one of the exceptions to the classic formal will, and offer an interesting insight into non-traditional testamentary documents. In Ontario, section 6 of the Succession Law Reform Act states that "A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness." A will created pursuant to these provisions is known as a holographic will. Put simply, a holographic will is a will that is entirely in handwriting of the testator that does no have to meet the formal requirements regarding execution that a traditional will does. So long as the will is entirely in the handwriting of the testator, signed by the testator, and has a "donative intent", the holographic will can be held to be the Last Will and Testament of the deceased.
Perhaps the most famous example of a holographic will in Canada is that of Cecil George Harris, a Saskatchewan farmer who in 1948 carved his will into the bumper of the tractor that he was pinned under. Using a small knife, Cecil carved "In case I die in this mess, I leave all to the wife. Cecil Geo Harris." Unfortunately for Cecil, he did not survive the incident. When the carving was discovered several days later by one of Cecil’s neighbours, the bumper was removed and brought to the court, where it was determined to be a valid holograph will. The bumper has now achieved a sort of celebrity status within the legal community, and is currently on display at the University of Saskatchewan Law Library.
Examples such as that of Cecil are not relegated to the history books. A local CBS affiliate in Houston, Texas recently reported on a man who, after being stuck in his car at the bottom of a ravine for three days, wrote his will on the console of his car. While thankfully the man was rescued, had he not been, it is likely that the will he wrote on his car’s console would have been accepted as his Last Will and Testament. The document was wholly in his own handwriting, was signed at the end, and had a "donative intent".
Though these two examples are rather extreme (as a simple piece of paper will do), they do a good job at showing the lack of rigidity that the courts are willing to accept when it comes to non-traditional testamentary instruments and holograph wills. So long as the document is entirely in the handwriting of the testator and is signed at the bottom, the document will meet the formal requirements of a holograph will and may be admitted to probate.
Ian Hull – Click here for more information on Ian Hull.