Introduction
When contemplating a testamentary plan, it is always best practice to consult an estate planning professional. Not only can they ensure that the testamentary documents comply with all formal legal requirements,[1] but they can also tailor the estate plan to minimize taxes, avoid unintended consequences, and (hopefully) prevent future litigation.
With that being said, it is also important to note that Ontario recognizes the validity of holographic wills.[2] A holographic will is a form of testamentary document that is entirely in the handwriting of the deceased with a signature placed “after, following, under or beside or opposite to the end of the will”.[3] Notably, for holographic wills, there is no need for the attestation or signature of a witness.[4]
While holographic wills may be useful when in a pinch, they are far from advisable because without legal guidance, they are often prone to errors and ambiguities. They often omit essential clauses or create uncertainty about intention. Below we examine caselaw examples of the most common errors seen with holographic wills.
1. Mixing Typewritten and Handwritten Text
Mixing typewritten and handwritten text does not constitute a holographic will. As per Re: Lacroix Estate[5], where the Ontario Superior Court of Justice examined a document which combined typewritten and handwritten text. The court found that a will proffered as a holograph must be wholly in the testator’s handwriting to be valid under section 6 of the SLRA.
The court found that handwritten portions alone could be considered; however, the court also held that if the handwritten parts do not independently constitute a complete testamentary instrument, and the interpretation of the will requires reference to the typewritten sections, the will would fail to satisfy the statutory requirements.[6]
Ultimately, the court rejected the incorporation of typewritten words into a holograph will and held that the document, being only partially handwritten, could not stand on its own as a holograph will.
2. Forgetting to Sign
The requirement of a signature for testamentary documents, necessary for both attested and holographic documents, is a means to safeguard against forgery and impersonation.[7] When probating a testamentary document, the court has an obligation to ensure that the document before them is authentic. Consequently, when a purported testamentary document lacks a signature, the propounder may have to demonstrate its authenticity, or depending on the jurisdiction, it may be outright prohibited from being admitted to probate.
Poignantly, in King Estate v. Hiscock,[8] Justice Orsborn explained that a signature is required to authenticate and confirm the contents of a holograph will, and
“…without this final expression of confirmation, without this badge of authenticity, the holographic will stands on no stronger footing than a typed will, reflecting precise instructions, which remains unsigned. The signature is that which is required to breathe the life of intention into the preceding directions. Without that signature the document remains incomplete as an expression of the writer’s fixed intention”[9]
In a former leading Alberta case, prior to the adoption of validating provisions, the court held in Mihalopulos, Re,[10] that although the document in question was entirely in the handwriting of the deceased, it could not be considered a valid holograph document because it was not signed by the testator.
3. Failing to Show Testamentary Intention
If a holographic document does not demonstrate a testamentary intention, it will not be considered a testamentary document.
What this means exactly, was considered by the Supreme Court in their decision of Bennet v Toronto General Trusts Corp.[11] In this case, the majority held that,
“a holographic paper is not testamentary unless it contains a deliberate, fixed, and final expression of intent to dispose of the testator’s property on death.”[12]
An instructive case for helping one understand how to apply the test set out in Bennet, is Re Holyk Estate,[13] where the initial court found that a handwritten memorandum listing names and property did not express a clear intention that the gifts operate on death and thereby failed to show a deliberate, fixed, and final intention to dispose of property on death.[14]
4. Unclear provisions
In order to be enforceable, not only does a testamentary document need to satisfy the formalities of execution, but it’s terms must also be sufficiently clear. If the provisions are so unclear that the testator’s intentions cannot be ascertained, the courts will refuse to admit the document to probate or will only admit those portions that are clear and can stand alone without reference to ambiguous or extraneous material.
A great example of provisions so unclear they were determined to be unenforceable comes from Balfour Estate, Re,[15] as discussed in Walmsley Estate, Re.[16] In this case, the testator’s document did nothing more than “deputize” the testator’s daughter to distribute the estate property as she saw fit, but neither the testator nor the document itself made any disposition in favour of any person.[17] The court found there was no testamentary disposition, and therefore no testamentary intention, so the document was too unclear to be enforceable as a will.
5. No Residue Clause
While the omission of a residue clause does not completely invalidate the testamentary document, it tends to cause headaches for the intended beneficiaries to say the least. Where a holographic will, or any will, fails to include a residue clause (a sort-of catch-all provision typically placed at the end of the will to capture any property not listed in specific bequests) the distribution of the remainder property will result in a partial intestacy.
The Ontario case, Dickson, Re[18] explains that where a will names only specific legatees and does not include a residuary clause, the residue cannot be claimed by those legatees unless there is a clear intention shown in the will. For an interesting case that reviews the unintended consequences of partial intestacies as a result of a failed residue clause, see Gilchrist v Gilchrist[19] in which a lapsed residue was, reluctantly, distributed to an estranged sibling of the deceased.
Final Remarks
While Ontario law recognizes the validity of holographic wills, their informal nature makes them especially vulnerable to errors that can frustrate a testator’s intentions or even render the document invalid. Careful planning with the guidance of an estate professional remains the surest way to ensure one’s wishes are carried out as intended.
—
[1] For attested wills, formalities of execution are prescribed by ss 3, 4, and 7 of the Succession Law Reform Act, R.S.O. 1990, c. S.26. (“SLRA”)
[2] SLRA at section 6.
[3] SLRA at section 7.
[4] SLRA at section 6.
[5] Re: Lacroix Estate, 2021 ONSC 2919. (“Lacroix”)
[6] Lacroix, at para 19.
[7] Alberta Law Reform Institute, “WILLS: NON-COMPLIANCE WITH FORMALITIES”, Legislative Comment on Wills and Succession Act (June 2000), (Wills and Succession Act, SA 2010, c W-12.2) at pp 5.
[8] King Estate v Hiscock, 2015 NLTD(G) 173. (“King Estate”)
[9] King Estate, at para 24.
[10] Mihalopulos, Re, 1956 CarswellAlta 37; 19 W.W.R. 118; 5 D.L.R. (2d) 628; and recently affirmed Prevatt v Prevatt, 2024 ABKB 31.
[11] Bennet v Toronto General Trusts Corp., 1958 CarswellMan 66 at para 5. (“Bennet”)
[12] Bennet at para 5, citing from Whyte et al. v. Pollok, (1882), 7 App. Cas. 400; Godman v. Godman, [1920] P. 261; and Theakston v. Marson, (1832), 4 Hag. Ecc. 290, 162 E.R. 1452.
[13] Holyk Estate, Re, 1992 CarswellSask 546. (“Holyk Estate”)
[14] Holyk Estate, Re, at para 3.
[15] Balfour Estate, re, 1990 CanLII 7460 (SK KB).
[16] Re Walmsley Estate, 2001 SKQB 105 (CanLII). (“Re Walmsley”)
[17] Re Walmsley, at para 5.
[18] Dickson, Re, 1965 CarswellOnt 90; [1965] 1 O.R. 661; 49 D.L.R. (2d) 289.
[19] Gilchrist v Gilchrist, 2023 SKKB 187.
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Written by: Grant Swedak
Posted on: September 23, 2025
Categories: Commentary
Introduction
When contemplating a testamentary plan, it is always best practice to consult an estate planning professional. Not only can they ensure that the testamentary documents comply with all formal legal requirements,[1] but they can also tailor the estate plan to minimize taxes, avoid unintended consequences, and (hopefully) prevent future litigation.
With that being said, it is also important to note that Ontario recognizes the validity of holographic wills.[2] A holographic will is a form of testamentary document that is entirely in the handwriting of the deceased with a signature placed “after, following, under or beside or opposite to the end of the will”.[3] Notably, for holographic wills, there is no need for the attestation or signature of a witness.[4]
While holographic wills may be useful when in a pinch, they are far from advisable because without legal guidance, they are often prone to errors and ambiguities. They often omit essential clauses or create uncertainty about intention. Below we examine caselaw examples of the most common errors seen with holographic wills.
1. Mixing Typewritten and Handwritten Text
Mixing typewritten and handwritten text does not constitute a holographic will. As per Re: Lacroix Estate[5], where the Ontario Superior Court of Justice examined a document which combined typewritten and handwritten text. The court found that a will proffered as a holograph must be wholly in the testator’s handwriting to be valid under section 6 of the SLRA.
The court found that handwritten portions alone could be considered; however, the court also held that if the handwritten parts do not independently constitute a complete testamentary instrument, and the interpretation of the will requires reference to the typewritten sections, the will would fail to satisfy the statutory requirements.[6]
Ultimately, the court rejected the incorporation of typewritten words into a holograph will and held that the document, being only partially handwritten, could not stand on its own as a holograph will.
2. Forgetting to Sign
The requirement of a signature for testamentary documents, necessary for both attested and holographic documents, is a means to safeguard against forgery and impersonation.[7] When probating a testamentary document, the court has an obligation to ensure that the document before them is authentic. Consequently, when a purported testamentary document lacks a signature, the propounder may have to demonstrate its authenticity, or depending on the jurisdiction, it may be outright prohibited from being admitted to probate.
Poignantly, in King Estate v. Hiscock,[8] Justice Orsborn explained that a signature is required to authenticate and confirm the contents of a holograph will, and
“…without this final expression of confirmation, without this badge of authenticity, the holographic will stands on no stronger footing than a typed will, reflecting precise instructions, which remains unsigned. The signature is that which is required to breathe the life of intention into the preceding directions. Without that signature the document remains incomplete as an expression of the writer’s fixed intention”[9]
In a former leading Alberta case, prior to the adoption of validating provisions, the court held in Mihalopulos, Re,[10] that although the document in question was entirely in the handwriting of the deceased, it could not be considered a valid holograph document because it was not signed by the testator.
3. Failing to Show Testamentary Intention
If a holographic document does not demonstrate a testamentary intention, it will not be considered a testamentary document.
What this means exactly, was considered by the Supreme Court in their decision of Bennet v Toronto General Trusts Corp.[11] In this case, the majority held that,
“a holographic paper is not testamentary unless it contains a deliberate, fixed, and final expression of intent to dispose of the testator’s property on death.”[12]
An instructive case for helping one understand how to apply the test set out in Bennet, is Re Holyk Estate,[13] where the initial court found that a handwritten memorandum listing names and property did not express a clear intention that the gifts operate on death and thereby failed to show a deliberate, fixed, and final intention to dispose of property on death.[14]
4. Unclear provisions
In order to be enforceable, not only does a testamentary document need to satisfy the formalities of execution, but it’s terms must also be sufficiently clear. If the provisions are so unclear that the testator’s intentions cannot be ascertained, the courts will refuse to admit the document to probate or will only admit those portions that are clear and can stand alone without reference to ambiguous or extraneous material.
A great example of provisions so unclear they were determined to be unenforceable comes from Balfour Estate, Re,[15] as discussed in Walmsley Estate, Re.[16] In this case, the testator’s document did nothing more than “deputize” the testator’s daughter to distribute the estate property as she saw fit, but neither the testator nor the document itself made any disposition in favour of any person.[17] The court found there was no testamentary disposition, and therefore no testamentary intention, so the document was too unclear to be enforceable as a will.
5. No Residue Clause
While the omission of a residue clause does not completely invalidate the testamentary document, it tends to cause headaches for the intended beneficiaries to say the least. Where a holographic will, or any will, fails to include a residue clause (a sort-of catch-all provision typically placed at the end of the will to capture any property not listed in specific bequests) the distribution of the remainder property will result in a partial intestacy.
The Ontario case, Dickson, Re[18] explains that where a will names only specific legatees and does not include a residuary clause, the residue cannot be claimed by those legatees unless there is a clear intention shown in the will. For an interesting case that reviews the unintended consequences of partial intestacies as a result of a failed residue clause, see Gilchrist v Gilchrist[19] in which a lapsed residue was, reluctantly, distributed to an estranged sibling of the deceased.
Final Remarks
While Ontario law recognizes the validity of holographic wills, their informal nature makes them especially vulnerable to errors that can frustrate a testator’s intentions or even render the document invalid. Careful planning with the guidance of an estate professional remains the surest way to ensure one’s wishes are carried out as intended.
—
[1] For attested wills, formalities of execution are prescribed by ss 3, 4, and 7 of the Succession Law Reform Act, R.S.O. 1990, c. S.26. (“SLRA”)
[2] SLRA at section 6.
[3] SLRA at section 7.
[4] SLRA at section 6.
[5] Re: Lacroix Estate, 2021 ONSC 2919. (“Lacroix”)
[6] Lacroix, at para 19.
[7] Alberta Law Reform Institute, “WILLS: NON-COMPLIANCE WITH FORMALITIES”, Legislative Comment on Wills and Succession Act (June 2000), (Wills and Succession Act, SA 2010, c W-12.2) at pp 5.
[8] King Estate v Hiscock, 2015 NLTD(G) 173. (“King Estate”)
[9] King Estate, at para 24.
[10] Mihalopulos, Re, 1956 CarswellAlta 37; 19 W.W.R. 118; 5 D.L.R. (2d) 628; and recently affirmed Prevatt v Prevatt, 2024 ABKB 31.
[11] Bennet v Toronto General Trusts Corp., 1958 CarswellMan 66 at para 5. (“Bennet”)
[12] Bennet at para 5, citing from Whyte et al. v. Pollok, (1882), 7 App. Cas. 400; Godman v. Godman, [1920] P. 261; and Theakston v. Marson, (1832), 4 Hag. Ecc. 290, 162 E.R. 1452.
[13] Holyk Estate, Re, 1992 CarswellSask 546. (“Holyk Estate”)
[14] Holyk Estate, Re, at para 3.
[15] Balfour Estate, re, 1990 CanLII 7460 (SK KB).
[16] Re Walmsley Estate, 2001 SKQB 105 (CanLII). (“Re Walmsley”)
[17] Re Walmsley, at para 5.
[18] Dickson, Re, 1965 CarswellOnt 90; [1965] 1 O.R. 661; 49 D.L.R. (2d) 289.
[19] Gilchrist v Gilchrist, 2023 SKKB 187.
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