Validity of a Holographic Will Put into Question

One must use caution in creating a holographic will. Holographic wills are handwritten by the testator and while these types of wills are allowed in Alberta, they must meet specific legislative requirements to be found valid. Where a testator writes a holographic will without advice from a lawyer, they may not be aware of these legislative requirements, which runs the risk of the holographic will being found invalid.

The validity of a holographic will was at issue in the case Arena Estate, Re, 2020 ABQB 206. where Mrs. Arena had handwritten her will. The Court summarized the law on holographic wills from paragraphs 81 to 82 as follows:

• 81 The law requires that for a document to be given effect as a will, it must meet formal requirements. In the case of a holograph will, section 16 of the Wills and Succession Act, S.A. 2010, c. W-12.2, states that "a will may be made by a writing that is wholly in the testator's own handwriting and signed by the testator without the presence or signature of a witness or other formality."
• 82 Thus, a document may be a valid will even if it does not meet the usual formal requirements of being signed in the presence of two witnesses who each sign the will in the presence of the testator (section 15), provided that it is entirely written in hand by the testator and signed by the testator.

In addition, a holographic will must be “writing that is a testamentary disposition.” This principle was summarized by the Court at paragraph 84:

• 84 As held in Bennett v. Toronto General Trusts Corp., [1958] S.C.R. 392, 14 D.L.R. (2d) 1 (S.C.C.), "a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and . . . it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature" (at 396, original emphasis); see also Canada Permanent Trust Co. v. Bowman, [1962] S.C.R. 711, 34 D.L.R. (2d) 106 (S.C.C.); and Curtis, Re, 2014 ABQB 745 (Alta. Q.B.), paras 22-24 and cases cited.

Findings of the Court

The Court found Mrs. Arena’s holographic will did have a signature. The handwritten document contained the words “written by the hands of” her name, and this was sufficient to satisfy the signature requirement.

Further, the Court found Mrs. Arena had the requisite testamentary intention. She described the document has her will, and the writings within indicated an intention of final disposition of her significant assets.

This case provides an example of how a Court will determine whether a holographic will is a valid will. If you have questions regarding the validity of a holographic will, contact one of the estate litigation lawyers at Kantor LLP. We are happy to answer questions.