So you’re going to change your will. Be sure you do it right

Joyce Blond Frank B.A., B.C.L., LL.M.

December 2011

The holiday season is upon us and family relationships can be affected—for better and for worse. The get-together got you thinking. You arrive home and feel like changing your will. You know you can do it by yourself by writing out the changes or even writing a completely new will. But there are things to watch out for.

Our law tends to be formalistic and the laws pertaining to wills are no exception. The will you write yourself is called a “holograph will.” The form it must take is that it must be entirely written by the person making it and signed by that person without the aid of any mechanical process.

This type of will must be validated by the court after death, a process referred to as “probating the will.” Sounds simple enough.

But here’s what happened in the case of Mrs. L: When she passed away, a handwritten will was found in her purse. There was no question that it had been written by her, but she had failed to sign it. The law does provide some flexibility in that it confers a discretionary power on the judge to validate a will that does not meet all the requirements of form, so long as it meets the essential requirements and if it unquestionably and unequivocally contains the last wishes of the deceased. In other words, the defect in the form must not be a fundamental one, that is, an essential condition of validity. Unfortunately, it was decided that the signature of the testator constitutes an essential element of the holograph will. The fact that the will had been written around the time of the death and was found on her body did not make up for the fact that it had not been signed and the court refused to probate it. However, with regrets.

Mrs. A wrote her will in the margin of a puzzle book; it did not contain either a date or a signature. She gave it to a nurse to hold onto and the nurse mentioned it in Mrs. A’s medical file. A Superior Court judge concluded it contained her last wishes; he accepted the notation in the medical file and the testimony of the nurse in place of a signature and validated it. That decision was reversed by the court of appeal, which held that a notation in a medical file and the testimony of a nurse could not change handwritten notes in a puzzle book into a holograph will. Without a signature there was no will.

Mr. L drafted his own will using a laptop. He was very detailed in expressing his wishes and specified who would inherit and who should not. He then printed out the will. He wrote in the date and signed it; he also wrote the words “this is my will” and signed that statement as well. No witness signed the will, but a friend signed an affidavit that he recognized the signature of the deceased Mr. L.

The court held that the will failed to conform with the requirements as to form for the holograph will, which must be both written and signed by the testator without the aid of a mechanical device. It held further that the discretionary power given the judge to validate the will did not apply if the defect in form was fundamental.

Consequently, the fact that the will expressed the last wishes of the testator unquestionably and unequivocally could not override the fact that it failed to conform to the formalistic requirements of the law.

Although dating a will is not one of the fundamental requirements, it is a good idea to do so in order for people to know that it contains your latest wishes.

So if the holiday season motivates you to make a will—or change one—and you don’t feel the need to obtain professional help, remember to write it all out yourself, date it and sign it. Otherwise, your wishes may never be fulfilled.