When it comes to making a will and Estate Planning, things can get pretty complicated, particularly when dealing with holographic wills in Ontario. This article is here to break it all down for you. This piece seeks to clarify the concept of holographic wills, addressing their legality, prerequisites, and how formal wills and holographic wills differ. Whether you are planning to create a will or simply interested in exploring your choices, this guide provides everything you need to know about holographic wills in Ontario, ensuring that you are well-versed in this distinct form of testamentary document.
What Is A Holographic Will?
holograph – “manuscript handwritten by the person named as the author”Merriam-Webster
A holographic will is a handwritten will that is signed by the testator, the person making the will. In Ontario, a holographic will does not need to have any witnesses to be valid, unlike a typed or printed will. However, a holographic will must be entirely in the testator’s own handwriting, dated, and with the testator’s signature, and must clearly express their testamentary intentions, meaning their wishes about how to distribute their property and estate after death. A holographic will can be challenged in court if there is any doubt about its authenticity, clarity, or validity.
What Is The Difference Between A Holographic Will And Other Types Of Wills?
Holograph wills are Wills that contains and is entirely drafted in the testator’s handwriting and signature, with his or hers wishes for how they would like to distribute their estate. This type of will can be signed without the presence of witnesses.
A more traditional will, is a legal document, commonly called a Last Will and Testament. It is usually drafted by a lawyer (or legal online will kit), that sets out the same wishes of the testator, contains an attestation or signature, date and must have two witnesses signature.
What are the Requirements for Holographic Wills in Ontario?
The requirements for a holographic will in Ontario generally include:
- The will must be written by the testator in their own handwriting. It cannot be typed, printed, or written by someone else.
- The will must clearly express the testator’s intent to dispose of their property after their death. It should name the beneficiaries and the assets they will receive.
- The will must be signed and dated by the testator at the end of the document (dating is not a requirement but significantly helps)
- The will must be free of any alterations, erasures, or additions that are not initialed by the testator.
- Any gifts that are added below the signature of the testator are considered “invalid”.
A holographic will may be valid even if it does not comply with all the formalities of a regular will, such as having witnesses or a notary. However, it may also be more vulnerable to challenges and disputes in probate court. Therefore, it is advisable to consult a lawyer before making a holographic will or to make a formal will as soon as possible.
What are the Requirements of a Legal Will
- Must be 18 years old
- If under 18 years old: must be married, previously married, or enlisted in the Canadian Forces or a sailor at sea
- Must be of mentally capable and of sound mind
- Must contain the testators wishes with respect to his or her estate
- Must be signed by two witnesses, who must sign the last page of the document together with the testator, and in wet ink
The Legal Framework for Holographic Wills in Ontario
The legal validity of holographic wills varies from jurisdiction to jurisdiction. Some countries, such as France, Belgium, and Switzerland, recognize holographic wills as a valid form of testamentary disposition. Other countries, such as the United States, Canada, and the United Kingdom, have different rules depending on the state or province.
In general, holographic wills are more likely to be accepted if they are dated, clear, and consistent with the testator’s wishes and circumstances. However, holographic wills in Ontario also pose many challenges and risks for the testator and the beneficiaries, such as the possibility of fraud, forgery, loss, destruction, or ambiguity. Therefore, it is advisable to consult a lawyer before making a holographic will or to use a more formal method of estate planning.
How to Draft a Holographic Will in Ontario
- Write your name at the top of the document.
- State clearly that this is your last will and testament, and that you revoke any previous wills or codicils.
- Identify your beneficiaries and specify what assets or property you want to leave to each of them. You can also name alternate beneficiaries in case your primary ones predecease you.
- If you have minor children, name a guardian for them and a trustee for their inheritance.
- Sign and date the document at the end, preferably in the presence of two witnesses who are not beneficiaries of your will. Although witnesses are not required for a holographic will, they can help prove its authenticity and validity in court.
- Store the document in a safe and accessible place, and inform your executor and beneficiaries of its location.
It is always advisable to speak to a lawyer who specializes in will and estates before drafting your own handwritten will.
Do I need witnesses for a holographic will in Ontario?
You do not technically need any witnesses, but it is always advisable to have two witnesses sign your will to help prove it’s legitimacy if it is ever challenged.
Probate of Holographic Wills in Ontario
Holographic wills in Ontario are generally subject to the same probate process as other types of wills, but they may face more challenges or scrutiny from the court or other interested parties.
What are the alternatives?
- A formal will: This is a typed and signed document that is witnessed by at least two people who are not beneficiaries of the will. A formal will is more likely to be accepted and enforced by the courts than a holographic will in Ontario.
- A living trust: This is a legal arrangement that allows the testator to transfer their assets to a trustee, who manages them for the benefit of the testator and their heirs. A living trust can avoid probate, which is the legal process of validating and executing a will.
- A beneficiary designation: This is a way of naming a person or an entity to receive certain assets, such as bank accounts, retirement plans, life insurance policies, or securities, without a will. A beneficiary designation can override a will, so it is important to keep it updated and consistent with the testator’s wishes.
Who can benefit from a Holographic Will in Ontario?
- A holographic will can be a quick and easy way to make a will when there is no time or opportunity to consult a lawyer or prepare a formal will.
- A holographic will can be a way to express personal wishes that may not be included in a standard will, such as funeral arrangements, organ donation, or sentimental bequests.
However, a holographic will also has many drawbacks and risks, such as:
- A holographic will in Ontario may not be valid, or it may have to meet certain criteria, such as being entirely handwritten, dated, and signed by the testator. A holographic will may not cover all the aspects of estate planning, such as naming an executor, creating a trust, or minimizing taxes.
– A holographic will may be more prone to challenges, disputes, and litigation from disgruntled heirs or creditors who may claim that the will is forged, altered, revoked, or influenced by fraud, duress, or incapacity.
Therefore, a holographic will should not be considered as a substitute for a formal will prepared by an Estate Planning lawyer. It should only be used as a last resort or a temporary measure until a proper will can be made. Anyone who is considering making a holographic will, whether it is in a rush situation or to save on legal fees, should seek legal advice before doing so.
Key Takeaways on Holographic Wills in Ontario
Having any type of Will is always better than not having a Will at all. Holographic Wills are a good choice for anyone who doesn’t have time to formally meet with a lawyer to draft a Will, and who wants to ensure their estate is distributed according to their wishes.
While a holographic Will may seem like a cheap way to prepare your own estate planning, it is always better to consult with a legal professional who specializes in Wills and Estates to ensure that provincial laws and regulations, tax consequences and formalities are being met.