2016-08-10

Part 2: Can I handwrite a Will?

Bravo. You have decided that you will get on with it and write a Will. Now, you are thinking about doing it yourself, writing down what you want to have happen to your property in your own handwriting. In other words, making a Holograph Will.
Is a Holograph Will a good idea? In a word: no.

A Holograph Will is usually legal. That’s not the problem. The law in Ontario accepts the legality of a handwritten Will. In fact, the courts have accepted Holograph Wills written on a wall, a tractor fender, and a nurse’s petticoat.
Holograph Wills could be useful in an emergency. They are not the best option in normal circumstances.
One problem with a Holograph Will is that what might seem free of confusion to the person who wrote it, might not be so obvious after the person is gone.

A three-word Will might have seemed clear to this writer. He said: ‘All to Mother’. Did the writer mean all to his mother or all to the mother of his children? The United Kingdom court decided in favour of his wife because, at the time, in the deceased’s part of the country, it was the habit for men to use ‘mother’ to refer to their wives and the mother of their children. (Thorne v. Dickens, 1906).

Here are a few unfortunate cases from my own experience:

➢ A dear relative told me that her husband had a ‘handwritten will’ in her favour. Then she casually mentioned that she had written it out for him, because his handwriting was getting pretty shaky, and he had signed it. I took a deep breath before I gave her the bad news. The document was not a valid Will. To be valid as a holograph Will, her husband had to write it out himself. If it was in any other form (typed, or in someone else’s handwriting) it would only be valid if he signed it in front of two witnesses not named in the Will, who also sign it.

➢ Mary wrote a letter which she clearly meant to be her Will but she didn’t sign it. Therefore it wasn’t valid.

➢ Joe prepared a handwritten document starting with the clear statement that this was his Will and disinheriting his two children, from whom he had been estranged since his divorce. Joe signed the document right after that statement. Then, below his signature, he wrote the instructions for what he wanted to have happen to his property. Unfortunately, all the instructions after his signature didn’t count. The only effect of this Holograph Will was to disinherit Joe’s two children. The result was that Joe’s 18-year-old grandchild got everything because he was the next closest relative, and only heir.

➢ Anna left a document stating that her estate was to go ‘To all my relatives in Poland’. If she had died without a Will, it would have been easier. The search for heirs would stop at the closest category of relatives, by degree of kinship, who had survived her, such as her nieces and nephews. Writing it this way, meant the search for relatives could be never-ending.

➢ Sheila inherited some money from her father. He died without a Will and she received the money as one of his heirs. She used her inheritance to upgrade the home she lived in with her husband. Two years later her marriage broke down. She could not get back the money she had invested in the matrimonial home because it had not been given to her in a Will that specified it was only for her and her use. Instead, she had to share the value of the home improvements with her spouse. This may not have been what her father would have liked to happen to her inheritance.

To be legal, at a minimum, a Holograph Will requires evidence of the deceased’s handwriting from other documents, such as identification cards. Since a person’s handwriting often changes with age, it is not as easy as you might think to prove that someone wrote the Holograph Will. Everyone types these days and writing samples might be hard to come by!
The above are just a few of the many mistakes that could be made in preparing your own handwritten Will. I haven’t even covered any of the other issues around writing a Will.

When you write a Will, your goal is to have your wishes known and your estate easy to settle according to your instructions. You don’t want your heirs to waste money going to court for an interpretation of what you meant.
Hiring a lawyer to write your Will means that you are getting informed advice and that any mistakes or issues that arise about the Will’s meaning will be covered by the lawyer’s insurance.
As with so many things in the world, you get what you pay for.

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