Estate Planning

A Holograph Will at Great Expense

By Hull and Hull LLP

When a testamentary document comes before the Court, it is commonly understood that the Court will strive to give effect to the testator's intention to make a Will and to avoid an intestacy if at all possible. Of course, not every Will is drawn by a competent lawyer.  In the internet age (and the will kit age) do-it-yourselfers constantly challenge the Probate Court with documents which challenge common preconceptions. And lawyer-drawn Wills may themselves be modified after the fact by the testator's handwriting in an ill-advised attempt to save legal fees.

As a general proposition, handwritten portions of a will kit or the holographic part of any document containing non-holographic writing, may be probated as a Holograph Will provided the Court is satisfied that: (i) the document was intended to have dispositive effect; (ii) the typed printing is "superfluous or unessential"; and (iii) the holographic parts are capable of standing by themselves without the typed print.

Such was the case in Re Laidlaw Estate, a recent case out of the Court of Queen's Bench of Alberta.  The handwritten changes made by the testator to his lawyer-drawn and executed Will could not function as valid amendments given the absence of witnesses.  However, the Court considered the handwritten changes to the Will to stand on their own and therefore be probated as a Holograph Will.

David M. Smith

Full post as published by Toronto Estate Law Blog on September 23, 2010 (boomark / email).