In the context of a global pandemic and a new world of social distancing, we find ourselves in an unprecedented time. As estate planners who typically spend a good part of our time discussing the merits of a well drafted typed formal Will, we are now looking for creative solutions for clients in cases where clients are unable to sign a typed Will in the presence of two appropriate witnesses.

Where a formal typed Will cannot be validly executed, it may be necessary for a client to prepare a holograph Will (often intended as an interim solution), which does not have the same strict execution requirements as a typed formal Will. This approach is far from perfect but may be the only option for some clients.

One of the concerns with holograph Wills is that they don't address more complex planning, such as testamentary trusts or include other desirable Will provisions. One approach that has been discussed in recent weeks, amongst practitioners in this area, is whether estate planners can make use of the doctrine of incorporation by reference to incorporate the provisions of an unsigned typed formal Will into the terms of a holograph Will.

The viewpoints within the industry are somewhat mixed as to whether incorporating the provisions of a typed unsigned document into a valid holograph Will is acceptable and caution should be exercised to make sure that the holograph Will is valid in the first place. Before proceeding with this option, it is important to discuss the risks with your client, as this article is not legal advice.

In Ontario, a holograph Will (governed by section 6 of the Succession Law Reform Act ("SLRA")) is a testamentary document that is "wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness."1

The requirement that the holograph Will be wholly in the handwriting of the testator is essential. In addition, a valid holograph Will should have the testator's signature at the end of the document to give effect to all dispositions above the signature.2 In order to be valid, Ontario case law notes that a holograph Will must contain a "deliberate or fixed and final expression of intention as to the [testator's] disposal of property upon death."3

The doctrine of incorporation by reference allows a document entirely separate and apart from a Will to be considered part of a duly executed Will. The doctrine of incorporation by reference is only applicable where there is a valid Will into which the document may be incorporated. To incorporate the terms of another document into a Will, the Will must clearly and sufficiently reference and identify the document to be incorporated; the document to be incorporated must exist at the time the Will is signed; and the incorporated document must be "entirely separate and apart" from the Will.4

In the 1997 case of Facey v Smith, in the context of an unfortunate murder-suicide, the deceased and her husband each left three possible testamentary documents: (1) a formal Will (the "1981 Will"); (2) handwritten annotations to the 1981 Will which reference the codicil (the "Annotations"); and (3) a handwritten document titled "Codicil" naming no executors but naming beneficiaries different from those in the Will (the "Codicil").5

The Court held that the Codicil was not a valid codicil as it was not an independently created document showing a fixed and final intention as to the testator's disposition on death. Rather, the Annotations and the Codicil referred to each other and as a result were viewed by the Court as one document partially handwritten and partially typed, which was not properly executed and so failed as a testamentary instrument.

In obiter, the Court commented that the SLRA limits a holograph Will to one written "entirely in the handwriting of the testator", and noted that:

"In the case of a holograph Will, however, incorporation of typewritten words does not meet the statutory requirement. That requirement is that the holograph Will, to be valid, must be 'wholly by his own handwriting and signature and patently the incorporated typewritten words are not in the testator's handwriting.'"6

Where a holograph Will incorporates a typewritten document by reference, the Court will first examine whether the handwritten document is able to stand as its own testamentary document, as a complete expression of the testator's wishes. If the holograph Will fails to meet the requirements of the SLRA, the estate will be distributed according to the testator's last prior Will, or, if there is no other Will, by the rules of intestacy. The typed document may not be admissible, and caution should be exercised to make sure that the typed document and the handwritten document will not be viewed as a single document which would no longer conform to the rules for holograph Wills.

In Re Coate Estate, the testatrix made a Will in 1973.7 On May 10th, 1984, the testatrix had written a letter to her solicitor containing detailed instructions for the preparation of a new Will. The letter was typed by the testatrix but also contained handwritten comments and her signature. The testatrix enclosed a copy of her 1973 Will with written annotations.8 Counsel submitted that the handwritten portion of the May 10th letter is a holograph codicil that incorporates by reference the typewritten portion of the May 10th letter and the annotated copy of the 1973 Will.

The Court only admitted the 1973 Will for probate and excluded the handwritten annotations and the handwritten letter. The Court held that the combined handwritten portions did not contain the essential testamentary and dispositive language capable of being treated as a Will. Since the handwritten portions did not amount to a Will in holograph form or a holograph codicil, there is no foundation to which to attach or incorporate by reference the rest. As such, the Court did not have to comment on whether an unsigned typewritten document could be incorporated by reference into a holograph Will. The Court did however note that the typewritten portion of the May 10th letter could not be treated as part of the holograph Will since the meaning of "handwriting" in section 6 of the SLRA does not include "typewriting".9

In the case of Re Dixon-Marsden Estate, the deceased made a document purporting to be a Will on a single piece of paper. The main parts of the document, including the appointment of executors and the dispositions, were typewritten. Each typed paragraph was initialed by the deceased. Further, in his own handwriting, the deceased wrote, "the above-mentioned are in short those to whom my estate is left" followed by his printed name and signature.10

As was the case in Re Coate Estate, the Court held that the document was not a valid Will. The Court held that although the doctrine of incorporation by reference did not require two separate sheets of paper, the doctrine required two distinct documents. The doctrine of incorporation by reference contemplates the existence of a testamentary document that qualifies for probate, independent of the document sought to be incorporated. In this case the handwritten words were not, independently, capable of admission to probate since they did not purport to dispose of the deceased's property on death.11 The Court went on to reason that "in the case of a holograph Will, however, incorporation of typewritten words does not meet the statutory requirement."12

The Court in Dixon-Marsden did not follow the decision of the Saskatchewan Surrogate Court in Re Chamberlain, where the testator left a printed form of Will with his own handwritten portions. This form of Will document was signed by the deceased but not witnessed. He also left a separate single sheet of paper wholly in the deceased's handwriting and referring to the printed form of Will. The Court held that the separate single sheet was a valid holograph Will that incorporated the earlier form of Will document by reference into the holograph Will.13

As a result of the current state of uncertainty estate planners are working harder than ever to make sure that their clients have valid Wills in place. It is unclear whether the Courts will take a more flexible approach to the doctrine of incorporation by reference in the context of a holograph Will.

It is clear, however, that a holograph Will must form a valid testamentary document (i.e. the Will must be wholly in the testator's handwriting, signed by the testator at the end of the document, and there must be evidence that the document is a full and final expression of intention as to the disposal of the testator's property upon death) if there is to be any chance of the Court deciding to allow the testator to incorporate a referenced document.

Lawyers should warn their clients of the issues that exist when making holograph Wills and of the possibility that the approach of incorporating an unsigned typed Will by reference may not be accepted by the Court.

Footnotes

1. Succession Law Reform Act, R.S.O. 1990, c. S. 26, s.6.

2. Ibid, s. 7(1).

3. Bennet v Toronto General Trusts Corp., 1958 CarswellMan 66 (S.C.C.) at para 5; Laframboise v Laframboise, 2011 ONSC 7673 at para 13.

4. J. MacKenzie & T. G. Feeney, "Republication, Revival and Incorporation by Reference", Feeney's Canadian Law of Wills, (4th), (Toronto: Butterworths) at para 6.17, p. 6.7.

5. Facey v Smith, 1997 CarswellOnt 1643 (Ont. Gen. Div.) at paras 1-3.

6. Ibid at para 14.

7. Coate Estate, Re, 1987 CarswellOnt 642 (Ont. Surr. Ct) at para 1.

8. Ibid at para 4.

9. Ibid at paras 30-31.

10. Dixon-Marsden Estate, Re, 1985 CarswellOnt 4322 (Ont. Surr. Ct.) at paras 8-11.

11. Ibid at paras 14-16.

12. Ibid at para 23.

13. Re Chamberlain, 1975 CarswellSask 82.

Originally published by STEP Connect, Apr 17, 2020.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.