When it comes to estate planning, one option that Canadians may consider is a holographic will. A holographic will is a legal document that is entirely handwritten by the person creating the will. Holographic wills are valid in all Canadian provinces except for British Columbia and Prince Edward Island.
While holographic wills can be a free and convenient way to express your final wishes, they are frequently challenged in court. Reasons a holographic will may be challenged include:
- Failure to meet legal requirements
- Lack of testamentary capacity
- Undue influence or coercion
This blog post covers how to write a holographic will.
How to make a legal holographic will
The legal requirements vary by jurisdiction but they generally include three key points:
- Handwritten: Your holographic will must be entirely handwritten. You cannot refer to a separate document that you typed and printed out. Only the handwritten text is part of the holographic will.
- Signature: A holographic will must be signed by the person writing it. Unlike a typed will, you do not need anyone to witness a holographic will signing.
- Testamentary intent: The holographic will must clearly indicate the testator's intention to create a will and distribute their assets after death. This can be expressed through language such as "This is my last will and testament," or "I distribute my assets as follows."
- Testamentary capacity: The person writing the will must be of sound mind and understand the implications of writing a will.
Ontario case study: A suicide note accepted as a will
McGrath v. Joy was a 2021 court case in Ontario about whether a suicide note was a valid holographic will.
The court of appeal states:
Shortly before committing suicide, a person wrote a suicide note which met the requirements for a holograph will. He had been drinking and using drugs the day before his death.
In his suicide note, Mr. Joy revoked his prior will and left his estate to his children instead of his wife.
The court ruled Mr. Joy’s suicide note was a valid holographic will.
The court considered several factors, including Mr. Joy's understanding of the nature and effect of a will, recollection of the extent of his property, understanding of the beneficiaries and their potential claims, and whether he had a sound disposing mind. The court determined that Mr. Joy understood the nature of the claims that his wife might make against his estate, and that his use of drugs and alcohol did not automatically imply a lack of testamentary capacity. In particular, Mr. Joy had never been diagnosed with a substance abuse disorder and “continued to function at work” despite consuming drugs and alcohol daily.
Important clauses to include in a holographic will
Mr. Joy’s suicide note was accepted as a holographic will because it met the legal requirements for one. Mr. Joy listed specific major assets like a cabin, a $600,000 life insurance policy, and a car. A holographic will should mention all your major assets to prove you understood the implications of writing the will. You can use phrases like “I bequeath my [asset] to [name of beneficiary].” to list your gifts.
Beneficiaries are anyone who will inherit something. Holographic wills can be disputed if the will writer failed to consider certain people, like a spouse or a child. Mentioning everyone by name instead of general terms like “my family” helps avoid ambiguity.
The executor is responsible for carrying out the wishes set out in the will. You can use phrases like “I appoint [name of executor] as the executor of my estate.” to appoint an executor.
If you have underage children, you should appoint someone to take care of them after you pass away. You can use a phrase like “I appoint [name of guardian] as the guardian of my minor children, [names of children]." to pick someone who will take care of your children.
Be careful though, a will typically includes lengthy instructions about how the will impacts children. For example, a child may inherit property from you but an adult may need to maintain the property for them until the child reaches the age of majority. If you have minor children you should consider an online Last Will and Testament as an affordable alternative to a holographic will. A will written on a platform like LegalDeeds is at least eight pages long and includes clauses you would likely forget to handwrite in a holographic will.
Revoking prior wills and codicils
If you’ve written a will before, your holographic will must say something like “I revoke all former wills and codicils made by me” to avoid ambiguity about how the holographic will relates to the previous will.
Should you write a holographic will
Most lawyers would agree you should only write a holographic will in an emergency. Someone dying in a hospital doesn’t have time to find witnesses and write a proper will.
In most situations, an online will form is better than a holographic will. The small price of an online will platform provides peace of mind the will accurately reflects your wishes and is unlikely to be contested after you pass away.