Is It Possible to Use a Handwritten Will in Ontario?

Many Canadians believe that wills are complicated legal documents that you should only draft with the assistance of a lawyer. 

This is incorrect.  A will is merely a set of directions after one’s death that meets certain requirements.

Holographic = handwritten by the testator, signed by the testator

In order to be a valid handwritten holographic Will in Ontario, the document must meet two key requirements –

• It must be entirely in the handwriting of the testator, and
• It must be signed by the testator at the bottom.

It should also be dated, usually at either or both of the top of the document and beside the signature at the bottom.

Note that a handwritten holographic Will should NOT be written by someone other than the testator and then signed by the testator.  If the Will is written by hand by someone other than the testator it is not a valid holographic Will – it may still be admitted to probate but only after much longer and more expensive legal proceedings.

Note that there are additional requirements to probate any Will.  In particular, in Ontario, it is necessary to prove the signature of the testator on the Will.  Usually this is done using an ‘affidavit of execution’ signed by one of the two witnesses to the Will.  This is usually not possible with a handwritten holographic Will, and therefore more difficult (and expensive) techniques to prove the handwriting and signature must be used to probate the holographic Will.

What Information Does a Holographic Will Need to Have? 

Ideally, a handwritten will should contain all of the information that a typewritten will should contain.  It should contain information about who the executor (estate trustee) is to be, who the alternate executor is if the primary is unable or unwilling to act, who inherits what, and how to deal with the share that belongs to minors (children under 18).

Should You Make a Holographic Will? 

Not by choice.  Holographic Wills are really only suitable for an emergengy.  Handwritten or holographic Wills should normally only be used in extreme haste or urgent cases, especially when it is impossible to get two independent witnesses to witness the signature of the Will. 

Holographic wills are a very poor way to save money.  The amount saved on drafting is usually much less than the additional costs later incurred in probate.

For instance, if someone is in hospital alone awaiting emergency surgery, it may be reasonable to make a handwritten holographic Will, but it is best practice to then replace it with a more fulsome typewritten and properly witnessed Will when they recover from the surgery.

There are two other options that you should consider seriously –

• Have no Will.  Yes, consider dying intestate.  Often, this is a very good result, better than a hastily drafted, poorly planned Will.  The rules of ‘intestate succession’ set out who inherits what and how the Courts are to choose the estate trustee.  These rules are quite fair, and often fair better than last minute attempts to prefer one child or beneficiary over the others, or to exclude one or more children in a handwritten Will.
• Use an online tool.  There are many good tools now available to help you make a very good Will at a very reasonable price.  We recommend several here.
• Hire a lawyer to create a complete estate plan.  There is a lot more to estate planning than doing a Will.  Often, a Will is unnecessary if the proper planning has been put in place – but improper planning can create many problems.  Proper ownership of assets and beneficiary designations can accomplish a lot, but they can also cause real harm if done unwisely.

Conclusion 

It is possible to use a handwritten will in Ontario, but there are specific requirements that you must meet for it to be considered valid. The will must be entirely in the testator’s handwriting, and it must be dated and signed by the testator, and then there are additional hurdles to jump when it comes time to probate the Will.