Learn what makes a handwritten will valid in Ontario, including holograph will rules and the famous “tractor will” case.
In Ontario, a handwritten will (more commonly known as a holographic will), is wholly handwritten by a testator. The term “holographic” comes from the Greek meaning “wholly written by hand”. It cannot be partially handwritten, such as a “fill-in-the-blank” form, as this does not fulfil the requirement of a holograph will.
The requirements of a valid holograph will are set out in Section 6 of the Succession Law Reform Act 1990 (the “SLRA”), which states that:
“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”
Holograph wills are exempt from the statutory requirement that a will be witnessed by at least two people, who each sign the will in the presence of the testator.
The Famous Tractor Will
Oftentimes, there are interesting and memorable cases that come before the court – this is undeniably one of them. Most notably, this case involved a Canadian farmer who became trapped under his tractor and realized, under these dire circumstances, that his wife should be taken care of in case he died.
On June 8, 1948, Cecil George Harris, a fifty-six-year-old British-born Saskatchewan farmer was working on his farm. On that day, Harris told his wife that he would be plowing the fields and did not expect to be home before at least 10:00 p.m. When he did not return home as expected, his wife drove up to the field where he was working and found him trapped under the left rear wheel of the tractor. He was taken to a local hospital but died the next day. Harris did not tell anyone about the will he had scratched onto the tractor fender, but the neighbours who had assisted in freeing him from under the tractor discovered the etching, after they were examining the tractor. The etching read, “In case I die in this mess, I leave all to the wife. Cecil Geo Harris.”
The Saskatchewan court admitted the tractor fender into probate as a will. It had met the legal requirements of being in his own handwriting and signed by him.
The extraordinary and dramatic circumstances of this case attracted significant attention, not only in Saskatchewan but across Canada. Since 1977, the tractor fender and Harris’s pocketknife used to inscribe his final wishes have been on display at the University of Saskatchewan.
What if a Will is Non-Compliant?
If a will is non-compliant with the formalities of execution, the Court has authority to validate the document as the Will of the deceased under Section 21.1 of the SLRA, as if it had been properly executed or made. This was a recent amendment made to the SLRA in 2022, which means that Section 21.1 only applies to the wills of testators who have died after January 1, 2022. Although this curative provision would not apply in this case as the will had met all the legal formalities, it is important to note this significant change in the law that has given the Courts discretion to forgive deficiencies in a document as long as it reflects the testator’s true intentions.
Takeaway
Harris’s will illustrates that extraordinary and simple wills can be legally valid, but it also highlights how many people fail to plan ahead. Despite being seriously injured and facing imminent death, Harris was still able to leave clear instructions regarding the distribution of his estate, however brief they were.
Although the facts of Harris’s case are extraordinary, disputes concerning informal testamentary documents remain a common feature of estate litigation. The tractor will serves as an example of the courts’ willingness to give effect to a testator’s intentions, especially when those intentions are expressed outside the formalities of a formal will.
These matters often involve fact-specific and time-sensitive legal issues that require careful analysis at an early stage. For further information or assistance, please contact Nadine Esaid, Associate Lawyer at Boardwalk Law, at [email protected] or 365.747.3614.
