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Can an Unsigned Holograph Codicil Be Probated?

The recent case, BMO Trust Company v Cosgrove,[1] concluded that an unexecuted holograph codicil to a formal will could not be probated. This is an unexceptional conclusion and would not normally call for a blog, but I thought it might be useful to consider how the case might be decided under the new Ontario validation provision that took effect on 1 January 2022.

Nola Bogie made a formal will in 2004. She died in 2020. On or about 21 August 2017, she wrote a codicil in her own hand. It was not signed or witnessed but purported to change the formal will substantially. The applicant applied for an order directing that the codicil be admitted to probate.

On the cover page of the will the testator had written by hand, ‘Codicil attached. Nola Bogie 1 copy typed 1 copy handwritten’ and the words ‘The Last Will and Testament of Nola Louise Bogie April 23, 2004’. As she explained in both the handwritten and typed codicil, she made the typed codicil in case there were ‘any difficulties with reading handwriting’. The typewritten copy was also not signed or witnessed. On the typewritten copy, she typed ‘UPDATED ON printout copy Monday, August 21, 2017. This is NOT the date it is signed and witnessed. THIS IS THE TYPED DUPLICATE OF THE CODICIL TO BE CONSIDERED PART O[sic] THE LAST WILL AND TESTAMENT OF ME, NOLA LOUISE BOGIE, ACCORDING TO ONTARIO LAW’. She added that she was using colleagues as witnesses to the codicil. The codicil contained her written name and the concluding sentence of the codicil and the attestation clause both included her handwritten name, and the evidence confirmed that her signature was indistinguishable from the handwritten version of her full name.

In September 2017, the testator sent a signed handwritten letter to the Law Society asking for her will, which was in the Law Society’s possession, since the licence of the lawyer who drafted it had been suspended. In the letter she said, ‘I have just completed a handwritten Codicil making changes to this Will (not yet signed)’.

Dietrich J held that the holograph codicil was not signed by the testator and could therefore not be admitted to probate. Her Honour considered the statutory requirements for the execution of holograph wills, including the requirement that it must be signed. She focused in particular on s. 7(1) of the Succession Law Reform Act,[2] which says that the signature must be placed ‘at, after, following, under or beside or opposite to the end of the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his or her will’. She concluded that in writing her name a number of times in the holograph codicil, including the attestation clause, the testator did not intend to give legal effect to the codicil. The document was unfinished. Among other things, it was undated. It contained blanks for the date and the evidence supported the conclusion that the testator intended to insert the date when she was to sign it, and that she appreciated the need to sign the document.

This does not mean that the testator’s handwritten name in the attestation clause cannot serve as a signature. It can if the testator intended it to serve as his signature and to give effect to the document as expressing his testamentary intentions.[3] Cases in some jurisdictions hold that the document can be effective even if the handwritten name appears at the top of the document, so long as the testator intended it to serve as his signature.[4] However, in Ontario this seems possible only if the handwritten name appears at the end of the document, because s. 7(1) of the SLRA, quoted above, states expressly that this language also applies to holograph wills.[5]

How would a case like this be decided if it the testator died after 1 January 2022, when s. 21.1 of the SLRA came into effect?[6] Subsection (1) provides:

21.1 (1) If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased, as if it had been properly executed or made.

I suppose that since the subsection speaks of a document ‘not properly executed’, it could be interpreted as meaning that some of the formalities’ provisions must  have been complied with. But I doubt that this will happen. The subsection was intended not as a substantial compliance provision, but as a validating provision.[7] In any event, in this case there was some compliance with the formal requirements in that the codicil was in writing.[8]

What matters for the purpose of s. 21.1(1) is that the document ‘sets out the testamentary intentions of the deceased’. It could be argued that Ms Bogie’s codicil set out her testamentary intentions. However, in my opinion, in considering the application of s. 21.1, the court would likely come to the same conclusion as Dietrich J did in the original case. The codicil expressed certain testamentary intentions of the deceased, but they were not final, since she had not signed the document and she knew that she had to sign it in order to make it valid. Thus, the court would have to conclude that it did not incorporate her testamentary wishes.[9] Similarly, if the ‘document’ consists of  a note in a journal entry that was meant only as a note to the testator herself it cannot be validated, since it does not represent the testator’s final testamentary wishes.[10]

In a similar case, Cates v Quinn,[11] the British Columbia Supreme Court held that a will drafted by a lawyer but which the testator never signed, despite being reminded to do so, did not represent his fixed and final testamentary intentions, and could not be validated.

Cases in other jurisdictions hold that textual material that comes after the testator’s signature does not prevent validation.[12] Some hold that the validating provision does not override the statutory requirement that the document be signed by the testator.[13] However, in Rempel Estate v Dudley[14] the court held that a will that is stored electronically can be validated, even if it is not signed, so long as it represents the deceased’s fixed and final testamentary intentions. For a similar case, see Re Hubschi Estate.[15]

Thus, although other issues can be raised too, the overwhelming criterion under the different validating provisions is that the document in question incorporates the testator’s final testamentary intentions.

Obviously, the validating provision cannot be used if the testator lacked capacity when she made the will.[16] Nor can it be used if the will was procured by undue influence.[17] On the other hand, if a will can be validated under the validating power but there are allegations of suspicious circumstances, the court can order the will to be proved in solemn form.[18]

[1]    2021 ONSC 5681, 70 ETR 4th 118.

[2]    RSO 1990, c. S.26.

[3]    See, e.g., Re Arena Estate, 2020 ABQB 206.

[4]    See, e.g., Wood v Smith, [1992] 3 All ER 556 (CA); Schultz v Schultz, 2016 ABQB 367, 21 ETR 4th 315.

[5]    See Re Clarke, 1982 CarswellOnt 816, 29 OR 2d 392.

[6]    The section was added to the SLRA by the Accelerating Access to Justice Act, 2021, SO 2021, c 4, Sched 9, s 5. Note that subsection (3) of s 21.1 provides that subsection (1) applies if the deceased died on or after the day section 5 of Schedule 9 came into force.

[7]    Legislation such as. s. 58 of the British Columbia’s Wills, Estates and Succession Act, SBC 2009, c. 13 (‘WESA’), is quite clear on this point. It says in subsection (3) ‘Even though the making … of a will does not comply with this Act’, the court may validate it.

[8]    Section 58(1) of WESA provides that a validation order can be made even if the document is not in writing, but is recorded or stored electronically, can be read by a person, and is capable of reproduction in visible form.

[9]    Cf  Kube v Kube, 2013 SKCA 49, 6 ETR 4th 159.

[10]   Re Hadley Estate, 2017 BCCA 311.

[11]   2016 BCSC 1226, 21 ETR 4th 299.

[12]   See e.g., Oh v Robinson 2011 SKQB 200, affirmed 2012 SKCA 27, 74 ETR 3d 187, leave to appeal refused (2012), 440 NR 192 (note SCC); Re Estate of Jean Agnes MacDonald Marsden, 2017 NBQB 199, 33 ETR 4th 333, affirmed sub nom. Marsden v Talbot, 2018 NBCA 82, 46 ETR 4th 125; Re Briggs (1985, 21 ETR 127 (Man QB).

[13]   Woods v Cannon, 2014 ABQB 614, 4 ETR 4th 44. See also Montreal Trust Co of Canada v Andrezejewski (Committee of) (1994), 6 ETR 2d 42 (Man QB); George v Daily (1997), 143 DLR 4th 273 (Man CA); Re Mate Estate, 2000 SKCA 63, 35 ETR 2d 256; Re Nielsen Estate, 2012 SKQB 15, 76 ETR 3d 211; Komonen v Fong 2011 NSSC 315, 72 ETR 3d 153.

[14]   2020 BCSC 1766, 62 ETR 4th 38.

[15]   2019 BCSC 2040.

[16]   Weselowski v Weselowski, 2003 MBQB 191, 239 DLR 4th 407, additional reasons 2004 MBQB 11, 5 ETR 3d 161.

[17]   Pahlanuk v Moore Estate, 2013 MBQB 82, 87 ETR 3d 55.

[18]   Re Craig Estate, 2018 ABQB 830, 41 ETR 4th 276.


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