In the world of estate planning, it is a common occurrence for people to change and update their wills. Unfortunately, most people are unaware of the strict formal requirements to create valid wills in Ontario, and can take steps that have unintended consequences.
A frequent example of this occurs when people write handwrite comments, notes, or changes on their already executed wills.
While some people might make these hand-written comments for the purpose of reminding themselves of future changes that they wish to make to the document, and some people may believe that their handwritten comments will actually change the terms of their previous will, this subjection intention becomes lost if the will is discovered after the person passes away.
Instead, the current approach by courts in Ontario is to give valid testamentary effects to handwritten additions to wills if they meet the criteria under the Succession Law Reform Act (“SLRA”) of either a holograph will or an alteration to the document they are written on.[1]
Creating a Holograph Codicil
By virtue of sections 6 and 7 of the SLRA, individuals are able to make a valid will solely in their own handwriting as long as they sign the document and, with some exceptions, their signature is placed below the written dispositions:
Holograph Wills:
- A testator may make a valid will wholly by his or her own handwriting and signature, without formality, and without the presence or signature of a witness.[2]
Position of Signature:
- (1) In so far as the position of the signature is concerned, a will, whether holograph of not, is valid if the signature of the testator made either by him or her or the person signing for him or her is 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.[3]
Regarding when a person’s handwritten comments will be considered sufficient to “make a will” under s.6 of the SLRA, in King v. King-Fleming (Litigation Guardian of) (“King”), the Ontario Superior Court focused on two elements that must be met by the handwritten terms:
- the written additions must, on their own, be sufficient to form an entire holograph will; and
- the formal requirements of execution found under section 7 of the SLRA must be satisfied by the hand-written additions.[4]
As for when handwritten additions can meet the requirement of “standing on their own” to form a will, further clarification can be found in decisions such as Bennett et al. v. Gray / Bennett et al. v. Toronto General Trusts Corporation, where the Supreme Court of Canada set out that:
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.[5]
Turning now to the further question of when handwritten statements can be found to have formed a “deliberate or fixed and final expression of intention as to the disposal of property upon death”, the court explored this concept in Rezaee (Re) and found that a statement written, signed, and dated by a person on a cocktail napkin, bequeathing all of his wealth and property to a named close friend, was sufficient to constitute a deliberate or fixed and final expression of intention as to the disposal of property upon death and created a valid holograph will.[6]
As such, it appears that as long as hand written additions can on their own form a coherent and legible sentence that affects the disposition of property, and the formal requirements of execution found in sections 6 and 7 of the SLRA are met, then the handwritten additions made on a will can form a valid codicil.
Altering a Previous Will
Looking at when words will alter the will they are written on, rather than forming an independent codicil, the language of section 18 of the SLRA provides that changes made to a will shall be given testamentary effect if the testator (the person making the will) and any required witnesses sign the document in the required location(s). Unfortunately, if these formal requirements for witnessing and signing the document are not met when the changes are made, the written in words will instead invalidate the terms they are intending to effect:
Alterations in will
18 (1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Part governing making of the will, the alteration has no effect except to invalidate words or the effect of the will that it renders no longer apparent.
How validly made
(2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,
(a) in the margin or in some other part of the will opposite or near to the alteration; or
(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.[7]
Although the language of this legislation can appear technical and difficult to understand, the essential elements are that written alterations must simply be accompanied by the same formal requirements for execution as the will they are written on.
This view was explored and set out by the Ontario Superior Court in CIBC Trust Corporation v. Horn, providing:
The effect of section 18 generally is to render invalid alterations made after the will was executed, unless such alterations were made in accordance with the formal requirements which govern the validity of the particular will. Generally speaking, an alteration made to a formal will once it has been executed is valid only if the alteration is signed by the testator and attested and signed by two witnesses.[8]
Codicil or Alteration
In the face of these two paths towards validating handwritten comments on wills, testators who write on their wills should be careful to make sure that either:
- The handwritten words can stand on their own to express a testamentary disposition and meet the formal requirements to form a codicil under sections 6 and 7 of the SLRA; or
- The handwritten words change the effect(s) of the will they are written on, and meet the same formal requirements for execution as the will they are written on, as set out by section 18 of the SLRA.
—
[1] Succession Law Reform Act, R.S.O. 1990, c. S.26.
[2] Ibid at, s. 6.
[3] Ibid at s.7.
[4] King v. King-Fleming (Litigation Guardian of) (1995), 10 E.T.R. (2d) (Ont. Gen. Div.)
[5] Bennett et al. v. Gray / Bennett et al. v. Toronto General Trusts Corporation, 1958 CanLII 49 (SCC), [1958] SCR 392.
[6] Rezaee (Re), 2020 ONSC 7584.
[7] Supra, note 1, at s.18
[8] CIBC Trust Corporation v. Horn, 2008 CanLII 39783 (ON SC) [CIBC Trust]
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Written by: Evan Pernica
Posted on: December 30, 2022
Categories: Commentary, WEL Newsletter
In the world of estate planning, it is a common occurrence for people to change and update their wills. Unfortunately, most people are unaware of the strict formal requirements to create valid wills in Ontario, and can take steps that have unintended consequences.
A frequent example of this occurs when people write handwrite comments, notes, or changes on their already executed wills.
While some people might make these hand-written comments for the purpose of reminding themselves of future changes that they wish to make to the document, and some people may believe that their handwritten comments will actually change the terms of their previous will, this subjection intention becomes lost if the will is discovered after the person passes away.
Instead, the current approach by courts in Ontario is to give valid testamentary effects to handwritten additions to wills if they meet the criteria under the Succession Law Reform Act (“SLRA”) of either a holograph will or an alteration to the document they are written on.[1]
Creating a Holograph Codicil
By virtue of sections 6 and 7 of the SLRA, individuals are able to make a valid will solely in their own handwriting as long as they sign the document and, with some exceptions, their signature is placed below the written dispositions:
Holograph Wills:
Position of Signature:
Regarding when a person’s handwritten comments will be considered sufficient to “make a will” under s.6 of the SLRA, in King v. King-Fleming (Litigation Guardian of) (“King”), the Ontario Superior Court focused on two elements that must be met by the handwritten terms:
As for when handwritten additions can meet the requirement of “standing on their own” to form a will, further clarification can be found in decisions such as Bennett et al. v. Gray / Bennett et al. v. Toronto General Trusts Corporation, where the Supreme Court of Canada set out that:
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.[5]
Turning now to the further question of when handwritten statements can be found to have formed a “deliberate or fixed and final expression of intention as to the disposal of property upon death”, the court explored this concept in Rezaee (Re) and found that a statement written, signed, and dated by a person on a cocktail napkin, bequeathing all of his wealth and property to a named close friend, was sufficient to constitute a deliberate or fixed and final expression of intention as to the disposal of property upon death and created a valid holograph will.[6]
As such, it appears that as long as hand written additions can on their own form a coherent and legible sentence that affects the disposition of property, and the formal requirements of execution found in sections 6 and 7 of the SLRA are met, then the handwritten additions made on a will can form a valid codicil.
Altering a Previous Will
Looking at when words will alter the will they are written on, rather than forming an independent codicil, the language of section 18 of the SLRA provides that changes made to a will shall be given testamentary effect if the testator (the person making the will) and any required witnesses sign the document in the required location(s). Unfortunately, if these formal requirements for witnessing and signing the document are not met when the changes are made, the written in words will instead invalidate the terms they are intending to effect:
Alterations in will
18 (1) Subject to subsection (2), unless an alteration that is made in a will after the will has been made is made in accordance with the provisions of this Part governing making of the will, the alteration has no effect except to invalidate words or the effect of the will that it renders no longer apparent.
How validly made
(2) An alteration that is made in a will after the will has been made is validly made when the signature of the testator and subscription of witnesses to the signature of the testator to the alteration, or, in the case of a will that was made under section 5 or 6, the signature of the testator, are or is made,
(a) in the margin or in some other part of the will opposite or near to the alteration; or
(b) at the end of or opposite to a memorandum referring to the alteration and written in some part of the will.[7]
Although the language of this legislation can appear technical and difficult to understand, the essential elements are that written alterations must simply be accompanied by the same formal requirements for execution as the will they are written on.
This view was explored and set out by the Ontario Superior Court in CIBC Trust Corporation v. Horn, providing:
The effect of section 18 generally is to render invalid alterations made after the will was executed, unless such alterations were made in accordance with the formal requirements which govern the validity of the particular will. Generally speaking, an alteration made to a formal will once it has been executed is valid only if the alteration is signed by the testator and attested and signed by two witnesses.[8]
Codicil or Alteration
In the face of these two paths towards validating handwritten comments on wills, testators who write on their wills should be careful to make sure that either:
—
[1] Succession Law Reform Act, R.S.O. 1990, c. S.26.
[2] Ibid at, s. 6.
[3] Ibid at s.7.
[4] King v. King-Fleming (Litigation Guardian of) (1995), 10 E.T.R. (2d) (Ont. Gen. Div.)
[5] Bennett et al. v. Gray / Bennett et al. v. Toronto General Trusts Corporation, 1958 CanLII 49 (SCC), [1958] SCR 392.
[6] Rezaee (Re), 2020 ONSC 7584.
[7] Supra, note 1, at s.18
[8] CIBC Trust Corporation v. Horn, 2008 CanLII 39783 (ON SC) [CIBC Trust]
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