Holographic Will = handwritten and signed by testator
It is possible to probate a holographic Will in Ontario. There are three key requirements
- The document must be entirely handwritten by the testator,
- The document must be signed at the end by the testator, and
- For probate, there must be ‘proof’ that this is the handwriting and signature of the testator.
For most Wills, the third item, ‘proof of signature’ is accomplished using an ‘affidavit of execution’ sworn by one of the two witnesses to the Will. Learn more about affidavits of execution here.
Most holographic Wills do not have an affidavit of execution. This creates a real hurdle for probate.
This hurdle can be overcome, but usually that requires legal skill and effort and cost. As a result, holographic Wills may be inexpensive to make but they are often expensive to probate.
The particular evidence that must be put before the Court to probate a holographic Will depends on the particular circumstances. Sometimes there were witnesses who saw the Will written and signed. Sometimes there are independent parties who can attest to the handwriting and signature of the testator. Getting the right evidence before the Court takes skill and effort but it can be done.
Consider other options
Often, the testator would be better off not making a holographic Will at all. Instead they should simply rely on the laws of intestate succession (who gets what, when there is no Will). These rules are generally equaly and thus quite fair for most families, and they also help to ensure that only a trustworthy and capable person is appointed the estate trustee. All testators should seriously consider not making a Will in preference to a hasty, poorly thought out holographic Will.
All testators need to consider the rules about joint ownership and beneficiary designations. Whether there is a Will or not these rules are very important, and often they make a Will irrelevant.
Probate of Wills handwritten by someone else
In order for a Will to be probated as a holographic Will it must meet the two formal requirements. In particular, it must be entirely in the handwriting of the testator.
A Will that was handwritten by someone other than the testator is not a holographic Will. However, this handwritten Will may still be admitted to probate if either
- It was signed by the testator in the presence of two independent witnessses. This would make it as valid as any properly executed type-written Will, and the normal probate process would apply, or
- The Will may be admitted to probate using the ‘substantial compliance’ provisions of Ontario law. Probate would not be routine or cheap, and a full application and hearing before a judge would be required.