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Holograph Will: Alberta Court’s Latest Decision – Balwin v Van Hout

Balwin v Van Hout, 2024 ABKB 220 – https://canlii.ca/t/k432g  

In a recent decision of the Court of King’s Bench of Alberta, Balwin v Van Hout, 2024 ABKB 220, the Honourable Justice R. W. Armstrong discussed the three conditions to validate a holograph will.


Arla Baldwin (the “Deceased”) died on January 21, 2021. She left two notebooks containing handwritten instructions regarding her estate: one was written in 2016 (“2016 Document”) and the other in 2020 (“2020 Document”)[1], together the “Documents”.

The Deceased was predeceased by her daughter, Collen Buchinski (“Collen”), and survived by her four children Claire Van Hout (“Claire”), the Respondent in this matter, Aaron Baldwin (“Aaron”), the Applicant in this matter, Robin Baldwin (“Robin”) and Allan Baldwin (“Allan”). Jessica and Stephen Buchinski (“Jessica” and “ Stephen”) are the children of Collen. They are all named beneficiaries in the documents. Claire and Aaron are the personal representatives of the estate.

A dispute arose over the interpretation of the 2016 and 2020 testamentary documents. The parties did not agree on whether the 2016 document was the Deceased’s last will and testament, or whether the 2020 document was the last will and testament or whether together, the 2016 and 2020 documents comprised the Deceased’s last will and testament[2].

More specifically, the dispute focused on whether the Deceased intended to give Aaron an option to purchase three sections of land owned by the Deceased. Aaron’s position was that the documents were valid holographic wills that did grant him an option to purchase the lands in question for a price he had previously offered to the Deceased. On the other hand, Claire’s position was that the documents were not valid holographic wills since they did not comply with the legislative requirements for a valid will. According to Claire, the Deceased’s estate should be distributed as though the Deceased died intestate[3].


Requirements of a valid will

Section 14 of the Wills and Succession Act, SA 2010, c W-12.2 (the “WSA”) sets out the requirements of a valid will. To be valid, a will must be in writing, it must be signed by the testator so that it is apparent on the face of the document that the testator intended to give effect to the document as the testator’s will and it must be made in accordance with sections 1516 or 17 of the WSA.

Formal will

Section 15 of the WSA provides for a will to be signed by the testator in the presence of two witnesses who are both present at the same time who each also sign the will in the presence of the testator.

Holograph will

Section 16 of the WSA explicitly permits the creation of a Will that is entirely handwritten by the testator and exclusively signed by the testator, without the necessity of witnesses or other formalities.


The issues for determination were:

  1. Were the 2016 and 2020 Documents prepared by the Deceased valid wills? If they were both valid wills, did the 2020 will revoke the 2016 will?
  2. If the 2016 Document was a valid will, did it give Aaron Baldwin an option to purchase three sections of land or a right of first refusal with respect to those lands?
  3. Were Claire and Robin each the beneficiary of a subdivided parcel of ten-acres of land?
  4. What was the Deceased’s testamentary intent with regard to two leases on her lands?

1. The 2016 Document

The 2016 Document was written in a red Hilroy exercise book. On the cover, the Deceased had written: “Last Will and Testament of Arla K. Baldwin”. It was written entirely in the handwriting of the Deceased and signed in the presence of two witnesses. The 2016 Document was dated November 15, 2016[4].

The Court considered the requirements of a valid will set out in the WSA and found that the 2016 Document met all the formal requirements of a valid will.

2. The 2020 Document

The 2020 Document was written in a red Hilroy steno book. On the cover were the names of the Deceased’s four children: Robin, Aaron, Clair and Allan[5].  It consisted of several entries over 20 pages which most of them were in the handwriting of the Deceased.

The Court analyzed the 2020 Document to determine if it was a formal will pursuant to s. 15 of the WSA. Firstly, the Deceased did not refer to it as her last will and testament[6]. Secondly, the 2020 Document did not expressly revoke all former wills and testamentary dispositions[7].

Thirdly, the 2020 Document did not name a personal representative[8]. Fourthly, the 2020 Document did not dispose of all the Deceased’s property. There were no residual beneficiaries named[9]. Fifth, the 2020 Document referred to the 2016 Document as the Deceased’s Will[10].

As a result, the Court concluded that the 2020 Document did not meet the requirements of a formal will and that, the 2020 Document did not meet the requirements to be a valid holograph will.

The Court clarified that it is possible to find a valid holographic will within a larger document that is not necessarily, when considered as a whole, a valid testamentary document[11]. Three conditions must be met before a handwritten portion of a larger document may be admitted for probate as a valid holographic will.

There were two portions of the 2020 Document that the Court concluded met the test to establish a valid holographic will.

The First was where the Deceased stated, in part, signed and dated the entry:

“Robin, Aaron, Allen, Claire

I give ten acres to Claire from the old gas well to the east. Please help her sub divide this. Cost of survey coming out of money in Bank. This is on quarter with old gas well.”

The Court was satisfied that the gift of ten acres of land to Claire did not conflict with any of the provisions of the 2016 last will and testament and could be read harmoniously with that document, therefore was a valid testamentary gift, subject to the ability of the designated land to be subdivided[12].

The Second was a dispositive intent with respect to a gift of ten acres of land to Robin. The pages were signed by the Deceased and dated June 3, 2020. There was a clear intent demonstrated in the plain words of the entries to gift a ten-acre parcel of land, adjoining Robin’s acreage, to Robin.

The Court was satisfied that the gift of ten acres of land to Robin was a valid testamentary gift, subject to the ability of the designated land to be subdivided.

There were other portions of the 2020 document that used dispositive language that did not, however, constitute valid testamentary dispositions. The Deceased’s handwritten entry of August 5 and the offer to purchase typed by Aaron did not result in a valid testamentary document. The reference in the 2020 document to land being sold to Aaron Baldwin for the amount that he offered to purchase the land for had no testamentary effect. The words were at best precatory, but they were not binding on the Estate’s representatives[13].

3. Does the 2016 Document Grant a Right of First Refusal or an Option to Purchase Land

Having the Court determined that the 2016 Document was a valid will, the nature of the interest in farmland given to Aaron had to be ascertained. The Court concluded that the testator’s intentions with respect to the three identified pieces of land to Aaron at fair market value were not ambiguous[14].

In addition, there was a consistent intention expressed by the Deceased in her 2016 last will and testament that the land she owned remained in the family[15].  That was consistent with her granting an option to purchase land to Aaron.

4. The Leases on the Land

There were two leases on the Deceased’s lands: Canadian Natural Resources Limited (CNRL) leave of 5 years with an annual income of $3,500.00. and with Rogers Communications Inc. (Rogers) a lease until the year 2054 with an annual income of $9,800.00.

The Court determined that given the clarity of the Deceased’s intention with respect to the Rogers lease and the CNRL lease to be divided equally amongst her children, with Collen’s share to be divided between Jessica and Stephen, it was incumbent on the estate to attempt to carry out those wishes by seeking the appropriate assignments of the leases[16].

Concluding Comments

As a result, the Court determined that the 2016 Document was a valid testamentary document. That document plus the two testamentary entries in the 2020 handwritten document bequeathing ten-acre parcels of land to Robin and Claire, comprise the Deceased’s last will and testament[17].

Holographic Wills are recognized in Canada except in the Provinces of Prince Edward Island and British Colombia. Holographic wills can potentially lead to claims of intestacy or legal challenges from family members and/or other beneficiaries. It is important to understand that there are risks associated with choosing to plan in this manner.

[1] Baldwin v Van Hout, 2024 ABKB 220 (CanLII) para 1

[2] Ibid para 3

[3] Ibid para 4

[4] Ibid para 6

[5] Ibid para 16

[6] Ibid para 21

[7] Ibid para 22

[8] Ibid para 23

[9] Ibid para 24

[10] Ibid para 25

[11] Ibid para 28

[12] Ibid para 31

[13] Ibid para 45

[14] Ibid para 62

[15] Ibid para 64

[16] Ibid para 73

[17] Ibid para 74


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