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In the recent case of McKenzie v. Hill before the Ontario Superior Court, an applicant sought a declaration that a handwritten document written by his sister was a valid holographic Will. He also argued that this Will gave him the authority to become her estate’s trustee.

What is a “Holographic Will” in Ontario?

Before getting into this case, you might wonder: what is a holographic Will? Ontario’s Succession Law Reform Act outlines the requirements for valid Wills. Usually, a Will must be in writing and signed by the testator. The testator needs to be over 18 and of sound mind when they create and sign the Will. In addition, Wills must be signed in the presence of two witnesses (who will also sign the Will).

Holographic Wills – where a testator writes and signs a Will themselves without meeting the formality or witnessing requirements under the law – are also allowed in Ontario (section 6 of the Succession Law Reform Act). An example of a holographic Will is where a testator writes their Will on a piece of paper without any witnesses.

Although legal under the Act, holographic Wills in Ontario are not the best option for estate planning. The executor must apply for probate to determine that the document in question is a valid holographic Will. Additionally, making a holographic Will (or any Will, for that matter) without the assistance of a lawyer means that you might inadvertently include contradictory or invalid instructions.

Deceased created handwritten document and called it her Will

In McKenzie v. Hill, the deceased’s brother sought a declaration that a handwritten document written by his sister was a valid holographic Will in Ontario. Before the deceased’s passing, her brother discovered that she had failed to pay her condo fees and was at risk of losing her home. He began to assist her with her finances, and, following a medical assessment, the deceased was moved to a retirement residence. She was declared incapable of managing her property and personal care pursuant to a court order, resulting in the deceased’s brother and his son being appointed as her joint guardians.

Sometime after moving into the retirement residence, the deceased’s condition improved, and she began handling some of her affairs again. During this time, the deceased gave her brother a document she identified as her Will. This document was handwritten and signed by the deceased and witnessed by one of the deceased’s friends. The document read as follows:

October 28, 2014

An Agreement to Transfer Property

I Joyce B. Hillman residing at The Red Woods Seniors Retirement (sic) do solemnly states (sic) that I wish to transfer my property at 12 Clarence Street, number 12 unit, Ottawa, Ontario, K1N 5P3 to my Brother Cecil McKenzie to be the sole owner. He can sell it at any time he wishes to do so without any interference by anyone. I have appointed him guardian and to be in full control of my finances. I set my hand this 28th day of October two thousand & fourteen and sign this agreement.

Signed Joyce B. Hillman

Witness:  Audrey E. Logan

The deceased’s brother asked if she wanted to see a lawyer regarding the Will, but she declined. Several years later, the deceased passed away.

Holographic Wills Require “Final Expression of Intention” for Disposal of Property

The Court noted that in addition to the requirements of the Succession Law Reform Act, an applicant must satisfy the Court that the document in question contains “a deliberate or fixed and final expression of intention as to the disposal of property upon death”.

The Court was satisfied that the document was in the deceased’s handwriting. However, several factors led the court to determine that the document was not a valid holographic Will.

Multiple Factors Pointed to Handwritten Document Not Qualifying as Holographic Will

First, despite telling the applicant that the document was a Will, the deceased titled the document “An Agreement to Transfer Property”.

Second, the document said that the deceased’s condo was to be transferred to the applicant and that the applicant would be “in full control of” the deceased’s finances. There was no mention of other assets. The Court noted that the direction that the applicant would control the deceased’s assets did not have the same meaning as giving those assets to the applicant.

Finally, the document did not reference the deceased’s death, nor did it specify that the condo would be transferred to the applicant when the deceased passed away. The Court stated that had the deceased used the word “Will” in the document, it could have inferred that she intended for the condo to be transferred upon her death. Instead, it simply referred to an “agreement”.

Based on these findings, the Court found that the document was not a valid holographic Will.

Were There “Suspicious Circumstances” Surrounding the Creation of the Document?

While the Court could determine that the document in question was not a holographic Will in Ontario, it went on to consider whether there were suspicious circumstances surrounding the document’s creation. Consideration of “suspicious circumstances” was not directed specifically at the applicant. Instead, the Court looked at the capacity of the deceased or any other factors that may have suggested that the deceased did not understand or approve the document in question.

The court order declaring the deceased incapable of managing her financial and personal affairs had never been set aside. That finding alone established suspicious circumstances surrounding the document’s creation. This finding put an onus on the applicant to satisfy the Court that the deceased had the capacity to create a Will at the time she made the document. While the applicant provided affidavit evidence that the deceased had been able to carry on conversations and discuss memories after the court order regarding her capacity, there was no evidence regarding her capacity at the time she prepared the document. Therefore, the applicant failed to satisfy the court that the deceased had the capacity to create a Will at the time she created the document.

Deceased’s Brother Directed to Search for Any Other Existing Wills

The Court noted that the applicant would be the appropriate person to apply to be the trustee of the deceased’s estate. However, given that the document was not found to be a valid holographic Will in Ontario and the applicant had not proven that he made an adequate search for another Will, the Court adjourned the application. The adjournment was intended to provide the applicant with an opportunity to see whether another Will could be found or to confirm that a Will was not found despite a careful search.

Contact Derfel Estate Law for Experienced Representation in Estate Litigation

The McKenzie case demonstrates the importance of speaking to a lawyer when preparing your Will. While it may be tempting to save costs by creating a Will without the assistance of a professional, it can result in serious consequences (and costs) for your beneficiaries down the line.

At Derfel Estate Law, our experienced team of estate lawyers provides skilled advocacy for clients involved in a variety of estate and trust disputes, including Will challenges and issues related to executors or trustees. We are conveniently located in Toronto and proudly serve clients throughout the Greater Toronto Area and Ontario. To schedule a confidential consultation, contact us online or by phone at 416-847-3580.

For professional service and knowledgeable advice on Estate Law matters contact Derfel Estate Law

Contact Derfel Estate Law today to speak with a Toronto estate lawyer who will work tirelessly to achieve the best possible resolution to your will, estate, power of attorney, or trusts dispute.

Call us at 416-847-3580 or contact us using the form.

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