September 26, 2017 By: Paul Taylor-Sussex
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It makes sense that a Will you executed many years ago will need to be updated at some point. Maybe you will want to add a beneficiary, or choose a different estate trustee.

Last Will and testament document with pen

Can you just strike out one name and write another one? Is handwriting in a Will even considered valid?

A recent British Columbia decision is a reminder that Wills are complex and often contentious documents, and any changes need to be made very carefully.

The musings of an aging lady?

In Estate of Palmer, Pauline Palmer had executed a short Will in August, 1988. In this Will, she appointed Montreal Trust and her cousin, Emily Takats, as her executors and trustees, and Ms. Takats as sole residual beneficiary of her estate.

After Ms. Palmer’s death, a copy of the Will was discovered with various handwritten alterations, which had been initialed (but not signed). These include a deletion of Montreal Trust and Ms. Takats as executors and trustees (Ms. Takats had died sometime before), substituted with Allen Homeniuk, the son of her first cousin. It also deleted Ms. Takats as sole beneficiary.

Mr. Homeniuk applied for a declaration that the handwritten changes on the Will represent Ms. Palmer’s testamentary intentions and that the amended document should be given effect. He also applied for an order to expressly name himself as residual beneficiary. Section 58 of B.C.’s Wills, Estates and Succession Act describes how deficiencies in a Will can be “cured” by a court order. Ms. Palmer’s nephews, Sean Palmer and Daryl Palmer, disputed the claim, arguing that the handwritten notes on the Will were “simply the musings of an aging lady”.

Mr. Homeniuk testified in a sworn affidavit to a “close relationship” with Ms. Palmer, and claimed that they had regularly discussed matters of her estate. However, the affidavit testimony of Ms. Palmer’s nephews describes something very similar (a “very positive relationship”), and that they had never heard Ms. Palmer mention Mr. Homeniuk.

Given the conflicting affidavit evidence, the judge ended up ordering a trial of the issue, in order to determine whether to uphold the handwritten notations on the Will, and also to ascertain Ms. Palmer’s capacity at the time she made the notations. Stay tuned to hear the outcome of this case.

What is the law in Ontario for handwriting in Wills?

Unlike in B.C., Ontario legislation has strict guidelines for amending Wills after they have been executed. Section 18 of the Succession Law Reform Act states that any alterations need to be signed (not just initialed) by the testator and witnesses. So in the case of Ms. Palmer’s Will, those changes would be considered invalid in Ontario because they bore only her initials. Initialed changes are only permitted if the testator is a member of the Canadian Forces, or if it is a holographic Will.

A holographic Will is written by hand by the testator themselves, and signed. While handwritten Wills are considered to be valid in Ontario (and most other provinces in Canada), it is obviously not the ideal manner in which to make directions regarding your estate. There have been many instances of drawn-out litigation over the details in a holographic Will, as in most cases they have not been reviewed by a lawyer.

Need to change your Will?

While it might seem straightforward to simply make handwritten notations in your Will to reflect a change in your intentions, it can create a myriad of legal issues, as this B.C. case demonstrates.

The best way to make amendments that will be easily recognized by a court is to either have your lawyer draw up a new Will, or have a Codicil created. A Codicil is a short document that states the changes that you wish to make, and then confirms the original Will. It is signed by the testator as well as witnessed.

Everyone knows that handwriting can often be open to interpretation, and given how important your Will is to your estate, it is best to have a lawyer assist you in creating one for you.

For more information about amending Wills, or to make a change to your own Will, contact our Wills and Estates Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

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