June 8th marked the 71st anniversary of the infamous “tractor fender will.”

On June 8, 1948, Cecil Harris became pinned down under his tractor in Rosetown, Saskatchewan.  Fearing that he may not survive, Cecil used a pocket knife to scratch the following sixteen words into the fender of his tractor:

“In case I die in this mess I leave all to the wife.  Cecil Geo Harris”

Cecil died on June 9th as a result of injuries sustained in the accident.  The fender of the tractor was removed and examined by the courts, which determined that the message and signature carved into it were a valid handwritten will.

Handwritten wills are also known as ‘holographic’ wills, and are valid in Ontario, provided that they meet certain requirements as set out in the Succession Law Reform Act (SLRA), which states 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.

There are 3 key requirements for a holographic will under the SLRA.

  1. Wholly in the handwriting of the testator
  • For a holographic will to be valid, it is necessary that the entire document be made in the handwriting of the person making the will.  A downloadable template or fill-in-the-blank form will not meet the requirements of a holographic will under the SLRA.
  • The Ontario courts have also ruled that typed documents cannot be incorporated into a holographic will.  If your holographic will makes a reference to a separate typed document, the typed document will not be recognized by the courts as legitimate.

 

  1. Signed by the testator
  • The document must be signed by the testator.  The location of the signature is important in a holographic will.  The signature must be made at the end of the document, giving effect to the dispositions contained before the signature.  Any further items written below the signature, such as further dispositions, will not take effect.
  1. Full and final expression of intention
  • The final requirement for a valid holographic will is that the contents of the holographic will must reflect the fact that the testator had the requisite intention that the document they were writing was to be a final disposition upon death, and not just a mere expression of their feelings of something they might like to do.

 

A person trying to have a holographic will accepted by the court must show, either by the content of the will or through outside evidence, that the document reflects the level of intent necessary to satisfy the requirements of the SLRA.

Any alterations or additions to a holographic will must satisfy the same conditions listed above.  The question of when the alteration was made becomes important.  If there is no signature or initials beside the alteration, it will be necessary to determine when the alteration was made.  If it was made at the time the holographic will was executed, the change may be valid.  If it was made after the execution of the holographic will, the alteration will not be valid.

While a holographic will could potentially be accepted by the courts, it is far from ideal.  Many cases in which holographic wills have been discovered have resulted in long and costly legal battles before the documents were accepted by the courts as legitimate.

The best way to ensure that your wishes for your estate are protected and respected following your death is to meet with a lawyer to draft a valid will.

Daniel & Partners LLP has many experienced lawyers practicing in Wills & Estates.  We offer a full range of services, from simple wills and powers of attorney to complex estate planning, trusts and guardianship matters.

Contact our office to arrange an initial consultation as soon as possible to get our team started on your case.

Post written by Karen Shedden, associate lawyer.

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