We have blogged a number of times over the years about challenges to the validity of wills. Having a will is an important way to mitigate the likelihood of estate litigation upon your death. It’s important to make sure that a will is written with the assistance of a qualified professional, but as we see in a recent from Alberta, as well as one from Saskatchewan, less-formal wills can still stand up in court.
A will written on a napkin
In a 2020 decision from the Court of Queen’s Bench for Saskatchewan looked at a situation where a father of seven children drafted a will on a napkin at a fast food restaurant. Like Ontario, Saskatchewan law allows for holograph wills, which are drafted in a more casual sense than a regular will. Holograph wills can be 100% handwritten, and so long as they are signed by the testator, they can be considered valid.
In this case, there were some questions about the mental capacity of the father, but those were not found to be reason enough to discount the validity of the will, as the only real evidence to point to a lack of mental capacity was some inaccurate spelling of names.
In this case, the father thought he may have been having a heart attack. As a result, the court found it was natural that he would turn to the question of estate planning. He didn’t die, but he did deliver the will to his daughter. This was enough for the court to find that there was a clear testamentary intention.
A will written on a sticky note
Similarly, a recent decision from the Alberta Court of Queen’s Bench considered a will drafted on a sticky note.
In this situation, the deceased had a will that was written in 1997. Then, four days before he died on March 1, 2018, he wrote a note on two sticky notes titled “changes to my earlier will.” The changes, as described by the court, essentially constituted a new will.
In order for the changes to be considered valid, they had to meet the province’s requirements for a holographic will. Like in Ontario, a holographic will ibn Alberta can be handwritten, and if signed by the testator, can stand as a will. In this case, it did not matter that the will was written on sticky notes. They were signed, and they referenced the 1997 will. They also contained the details needed to understand the testamentary intention of the deceased.
One of the concerns before the court was that one of the beneficiaries had witnessed the will and signed it. However, since a holographic will does not require a witnesses’ signature, the court found that the presence of it did not preclude the witness from being a beneficiary.
If you are considering filing an application to challenge a will, contact the estates lawyers at Derfel Estates Law before you proceed. We can help you determine whether you are eligible to bring such a claim, can help you understand your options and rights, and can represent you throughout the challenge process. Call us at 416-847-3580 or contact us online to schedule a consultation.