Handwritten Wills in Ontario: Understanding Validity in the New Legal Landscape

Handwritten Wills, also known as Holographic Wills, have long held a special place in Ontario’s succession laws. Their validity has evolved significantly, particularly following the 2022 amendments to the Succession Law Reform Act (SLRA). Let’s explore the historical context, recent changes, and what this means for Ontarians considering handwritten wills today.
 

Historical Treatment of Handwritten Wills

Prior to 2022, Ontario operated under a strict formalist approach to wills. The SLRA required wills to meet specific formal requirements to be considered valid:

1. The document had to be in writing
2. The testator (the person making the will) had to sign the document
3. Two witnesses had to be present when the testator signed
4. The two witnesses also had to sign the document

However, Ontario law recognized a notable exception for holographic wills. A holographic will is a will that is:

• Written entirely in the testator’s own handwriting
• Signed by the testator
• Expressing a final testamentary intention

This exception allowed individuals to create legally binding wills without witnesses, provided they met these three requirements. Courts would often scrutinize holographic wills carefully to ensure they truly represented the testator’s final wishes.
 

The 2022 Shift: Substantial Compliance and Court Validation

In 2022, Ontario made a pivotal change to its succession laws. The amendments introduced what’s commonly called a “substantial compliance” provision. This provision allows courts to validate a document that doesn’t strictly meet all formal requirements but still “purports” to be a will.

Section 21.1 of the amended SLRA states:

If the Superior Court of Justice is satisfied that a document or writing that was not properly executed or made under this Act sets out the testamentary intentions of a deceased or an intention of a deceased to revoke, alter or revive a will of the deceased, the Court may, on application, order that the document or writing is as valid and fully effective as the will of the deceased, or as the revocation, alteration or revival of the will of the deceased as if it had been properly executed or made.

This represents a shift from a strict formalist approach to one that focuses more on the testator’s intentions rather than rigid adherence to formalities.
 

Recent Court Guidance on Handwritten Wills

Since 2022, Ontario courts have provided valuable guidance on interpreting the new provisions, particularly regarding handwritten documents. Here are some key principles emerging from recent cases:

1. Testamentary Intention

Courts examine whether the document clearly expresses a testamentary intention. This means the document must show that the writer intended to distribute their property after death. Documents that merely express wishes or future plans may not qualify.

2. Final Nature of the Document

The court considers whether the document represents the person’s final wishes or merely a draft or preliminary thoughts. Phrases like “my last will and testament” can help establish this but aren’t always necessary.

3. Signature Requirements

While a formal signature remains important, courts now have the flexibility to recognize other marks or identifiers that clearly indicate the testator endorsed the document as their will.

4. Consideration of Surrounding Circumstances

Courts can now consider external evidence about the circumstances in which the document was created to help establish whether it was intended to be a will.
 

Practical Considerations for Handwritten Wills Today

If you’re considering writing a handwritten will in Ontario, here are some important points to consider:

Benefits of Handwritten Wills

• Accessibility: Can be written without legal assistance
• No witness requirement (for fully handwritten wills)
• Simplicity for straightforward estates
• Valid option in emergency situations

Best Practices

• Write the entire document in your own handwriting
• Clearly identify it as your “Last Will and Testament”
• Date the document
• Sign at the end
• Be specific about your wishes for property distribution
• Name an executor if possible
• Consider having witnesses sign anyway (for added security)
• Store the document somewhere safe but accessible to family members

Limitations and Risks

• Potential for ambiguity or unclear language
• Greater likelihood of successful challenges
• May be difficult for the executor to administer
• Increased risk of errors or omissions
• May require court validation, adding time and expense to estate settlement

When Professional Help Remains Advisable

While the law has become more flexible regarding handwritten wills, seeking professional legal advice remains the safest approach, especially in these situations:

• Complex family situations (blended families, estranged relatives)
• Significant assets or complicated property holdings
• Business ownership interests
• Potential disputes among beneficiaries
• International property or connections
• Special needs planning for dependents

Conclusion

Ontario’s 2022 amendments to the SLRA have created a more forgiving legal environment for handwritten wills. The shift toward substantial compliance means courts can now validate documents that express clear testamentary intentions, even if they don’t perfectly adhere to all formal requirements.

However, this increased flexibility doesn’t diminish the value of careful planning and proper execution. A professionally drafted will remains the gold standard for ensuring your wishes are carried out efficiently and effectively after your passing.

For those who choose to write their own wills, understanding the legal requirements and following best practices can help ensure their final wishes stand the best chance of being honoured. As the body of case law continues to develop around the 2022 amendments, we’ll gain even more clarity on how courts interpret and apply these new provisions.

Remember that while this article provides general information about handwritten wills in Ontario, it doesn’t constitute legal advice for your specific situation. When in doubt, consulting with an estate lawyer is the most reliable way to ensure your testamentary wishes will be respected. Reach out to Peter if you have any questions.

You might be interested in our article, The True Cost of Creating Your Will: Online Tools vs. Legal Professionals