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A Holograph Will: Can It Be As Simple As a One-Liner?

In Rezaee (Re)[1], the late Kamran Rezaee made a holograph will on March 20, 2018.  The will was made by Mr. Rezaee at a dinner party hosted by his close friend, Siamak Naftchi. At the dinner party, Mr. Rezaee wrote and signed in his own handwriting in Farsi a holograph will on a piece of paper.

The writing was translated and reads as follows:

“I, Kamran Rezaee, hereby give all my wealth and property to my close friend Mr. Siamak Naftchi. (signed) Kamran Rezaee, March 20, 2018.”

Affidavit evidence was submitted in this application that the holograph will was written and signed by Mr. Rezaee in front of a room full of Mr. Naftchi’s dinner guests.

At a motion to prove Mr. Rezaee’s holograph paper in solemn form, Charney J. ruled that based on the surrounding circumstances, Mr. Rezaee’s one line note in his own handwriting in Farsi and signed by him did in fact constituted a valid will.

Background Facts

Mr. Rezaee moved to Canada from Iran in 1983. He had no family in Canada. Mr. Rezaee was diagnosed with pancreatic cancer in October 2016, and died on August 18, 2018, at the age of 56.

Mr. Naftchi was Mr. Rezaee’s close friend. After Mr. Rezaee was diagnosed with cancer, Mr. Naftchi became his primary caregiver. When Mr. Rezaee died, Mr. Naftchi made the necessary funeral arrangements and paid for the funeral expenses.

Mr. Naftchi testified at the motion that Mr. Rezaee wrote his holograph will knowing that his cancer was terminal, with the intention that Mr. Naftchi would inherit his estate. To Mr. Naftchi’s knowledge, Mr. Rezaee had no family living in Canada, and his family in Iran were all deceased.

Mr. Naftchi only found the holograph will in or around November 2018, a few months after Mr. Rezaee’s death. Mr. Naftchi found the will in one of his winter jackets. It was Mr. Naftchi’s evidence that Mr. Rezaee put the will in the jacket pocket after writing it and then going to take a nap in Mr. Naftchi’s bedroom during the dinner party due to his illness.

The Application

After finding the holograph will, Mr. Naftchi applied to the court for a Certificate of Appointment of Estate Trustee With a Will.

On June 18, 2019, the court issued an endorsement requiring Mr. Naftchi to prove the holograph will in solemn form. The endorsement notes that the court will require independent witnesses as to Mr. Rezaee’s handwriting and signature, and that the Public Guardian and Trustee (PGT) shall be served with the application and notified of all court dates. The endorsement required Mr. Naftchi to notify Mr. Rezaee’s next of kin and serve them with all court documents. As part of the notice requirement, Mr. Naftchi was required to publish in a local newspaper and national newspaper, in Canada and Iran, that this application was before the court for adjudication and that the next of kin may have rights.

Mr. Naftchi published advertisements providing notice of the death of Mr. Rezaee to any creditors or next of kin in Canada and Iran. He also retained a lawyer in Iran to file an application in the First Branch of Family Dispute of Shabestar County for issuance of an inheritance restriction certificate for Mr. Rezaee. Mr. Naftchi ultimately obtained a Judgment of the Iran court that Mr. Rezaee did not have any legal heirs in Iran.

At the hearing of this motion for proof in solemn form, affidavit evidence from two independent witnesses was put before the court attesting to the fact that they were present when Mr. Rezaee wrote and signed the holograph will. Mr. Naftchi also swore and filed his own affidavit for use in the proceeding. The application was uncontested. The PGT was served but took no position on the relief sought by Mr. Naftchi.

The Law of Holograph Wills

The form of a holograph will is governed by section 6 of the Succession Law reform Act, RSO 1990, c S. 26, which provides that: a testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.

The substance of a holograph will is governed by the Supreme Court of Canada decision in Bennett et al. v Gray / Bennett et al. v Toronto General Trusts Corporation, 1958 CanLII 49 (SCC), [1958] SCR 392, at p. 396 (the “Bennett Case”):

[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 that 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.

In summary, the Bennett Case stands for the principle that a holograph paper is a valid holograph will if the deceased intended for it to be testamentary in nature when it was written. The document must be read as a whole and according to its ordinary and natural sense. In addition to the four corners of the document, the court may consider extrinsic evidence of the deceased’s intention and the surrounding circumstances.[2]

The onus of proof is on the propounder of the holograph will to show that the will was a deliberate or fixed final expression of intention as to the disposal of property.[3] Where suspicious circumstances are present, the party who seeks to rely on the instrument bears the onus of demonstrating that the testator had both testamentary capacity as well as knowledge and approval on a balance of probabilities.[4]

Interestingly and important in this case, the failure to use traditional language or appoint an executor does not prevent a holograph paper from qualifying as a will.[5]

Disposition

Here, Justice Charney was satisfied that the applicant had taken all necessary and reasonable measures to locate any relatives of the deceased in Canada and Iran, and that there are no legal heirs in either jurisdiction. His Honour also ruled that there is no basis to suspect that the deceased might have been incapable or under undue influence at the time the holograph will was written and signed.

While the language of Mr. Rezaee’s holograph will does not use traditional language, Charney J. was satisfied that, given the context in which the holograph was written, it “contains a deliberate or fixed and final expression of intention as to the disposal of property upon death.” In the context, his Honour determined that it was reasonable to infer that Mr. Rezaee intended his “wealth and property” to be given to Mr. Naftchi after his death. As such, the holograph will was proven in solemn form.

The rest of the decision deals with Mr. Naftchi’s application for a Certificate of Appointment of Estate Trustee With a Will. The analysis of the sufficiency of the information provided to the court by Mr. Naftchi in his application materials is outside the scope of this case review. We do although recommend that you review the decision if you wish to brush up on the law for dispensing with the requirement to post an administration bond as set out by Brown J. in the case of Henderson (Re).[6]

Takeaways

The notion “less is more” may not always be true in the context of making a will. That being said, the one-liner written by Mr. Rezaee in this case was enough for the court to determine that the holograph paper “contained a deliberate or fixed and final expression of intention as to the disposal of his property upon death.” It must be noted, however, that the propounder was fortunately assisted by the fact that the testator made and signed the holograph will in a room full of witnesses, some of whom were able and willing to attest to its execution in the application. The application was also uncontested by the PGT and any disappointed beneficiaries at law. Although a holograph will may appear to be an easy DIY estate planning tool, the value of a will drafting lawyer cannot be overstated even in light of this decision.

Thank you for reading.

[1] Rezaee (Re), 2020 ONSC 7584 (CanLII), http://canlii.ca/t/jc16t

[2] Canada Permanent Trust v Bowman, 1962 CanLII 81 (SCC), [1962] 2 SCR 711, at p. 715; Christos Donis v Dimitra Georgopoulous and Eleni Donis, 2014 ONSC 1427, at para 14, appeal dismissed: Donis v Georgopoulos, 2016 ONCA 194.

[3] Bertolo v Nadalini, 2007 CanLII 1915, at para 31

[4] Supra note 1 at para 35

[5] Laframboise v Laframboise, 2011 ONSC 7673, at paras 14 and 15

[6] Henderson (Re), 2008 CanLII 69136 (ON SC), http://canlii.ca/t/221lx

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