It may be surprising to some, but handwritten wills can be valid in certain circumstances. Clients often wonder how some messy handwriting on a faded old piece of paper can determine the fate of an entire estate. While a handwritten will may be valid in many cases, you are right to question the legitimacy of a handwritten will, particularly if it was written while the deceased may not have been of sound mind, or under the influence of another individual, coincidentally often the person set to inherit the estate according to that barely legible piece of paper that has suddenly been discovered.
According to Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S.26:
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.
Handwritten wills are also referred to as holograph wills. The requirements governing handwritten wills are much less onerous then those governing traditional wills. However, it is not advisable to make a handwritten will and you should contact a lawyer to arrange for a proper will to be drafted by a lawyer. Handwritten wills should only be used in cases of emergency.
If you want to contest a handwritten will, know that for any Will to be valid the deceased must have been of sound mind to make the will and not have been unduly influenced. The Will must also be a “fixed and final expression of intention” by the deceased as to his/her property upon death.
Handwritten wills are frequently challenged in court. They are often challenged on the basis that:
- The handwriting or signature is not that of the deceased;
- The deceased did not have the capacity to make the will (they were not of sound mind);
- The deceased was unduly influenced by another to make the handwritten will;
- The document was just a draft;
- The will is ambiguous or uses contradictory language;
- The signature is not where it ought to be;
- There are missing pages; and
- Alterations have been made to the will.
Get Help From an Estate Litigation Lawyer Today
There is a lot at stake when it comes to estates. Determining what constitutes a valid will requires a case-by-case analysis. The estate litigation lawyers at Northern Law LLP can provide invaluable guidance with the process of contesting a will or defending a will. You can contact our firm by phone at 705-222-0111 or by email at info@northernlaw.ca.