Holograph Wills: A Will With No Witnesses Being Valid

In BC, there are strict rules that govern when a will can be deemed a valid will. Wills must be (1) in writing, (2) signed and (3) witnessed by two or more people. When the testator’s intentions are clear, courts can rule invalid documents as valid in some cases. You may have heard of the term holograph will – this is a will that is hand-written by the will-writer and signed, but was not signed by any witnesses (or was not witnessed at all). There are scenarios where a Court process called curing could make this type of document a valid will.

People usually make holograph wills shortly before their death when they are unable to make a valid will. When there isn’t a valid will, the Courts will try to cure documents that show their final intentions. This is done in an effort to prevent the will writer dying intestate (without a valid will).

Holograph Wills

In some provinces, a holograph will can be valid on its own. The classic example of a holograph will being ruled a valid will is from the Harris Estate (1948) in Saskatchewan. In this case, a farmer was pinned underneath his tractor and he wrote a holographic will on the fender. He used a pocket knife to etch, “In case I die in this mess I leave all to the wife”. He had written his intentions and signed the fender himself. The Courts considered this valid, as it had met the requirements of a holograph will according to Saskatchewan law.

Unfortunately, for those living in BC, holograph wills are not recognized under the Wills, Estates and Succession Act (WESA). If the above case happened in BC, the document would be invalid as it doesn’t meet the criteria of a valid will. However, this doesn’t mean that you can only have a say in your estate distribution by writing a valid will. In emergencies, it can be unrealistic to expect a will to be written in accordance with the law. Because of this, BC courts can cure testamentary documents that aren’t legally valid into a valid will.

Curing the Testamentary Document

In s.58 of WESA, there are specific details and instructions for when a testamentary document can be cured. A testamentary document is described as “a will or designation or a document naming a person to receive a payment or series of payments on death under a plan or arrangement of a type similar to a benefit plan.” A testamentary document can be cured into a valid will if it represents:

• The testamentary intentions of a deceased person,
• The intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
• The intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.

The testamentary document must be authentic and representative of the deceased’s testamentary intentions. It must clearly be their final expression of intention. Generally, the more a document resembles a valid will, the higher chance it has of being cured. During the court process, external evidence can demonstrate the testator’s final intentions. External evidence is often essential to the Courts in making their decision.

Electronic Witnessing

As of June 23^rd, 2020, people are able to have their wills witnessed electronically in BC. While this isn’t a holograph will, it does make it easier for people to prepare a valid last will and testament in a short time frame. To have a will electronically witnessed, one must be in the virtual presence of two other people. This is commonly done through video conferencing programs such as Skype or Zoom. For more information, read our blog on electronically witnessing a will.

As a will-writer, the best way to ensure that you leave a valid will is to write one today. While the courts can cure testamentary documents into valid wills, it’s often the case that the courts are unable to cure the document, leaving the estate of those without valid wills intestate. Further, court proceedings are often stressful and time consuming for loved ones involved. It’s always best to mitigate risk and avoid court hearings when at all possible.

If you need help preparing a valid will or curing a loved one’s testamentary document, contact an experienced estate lawyer today. We can help to ensure that you or a loved one’s final intentions are respected and followed through.

Have a question about this topic or a different legal topic? Contact us for a free consultation. Reach us via phone at 250-888-0002, or via email at info@leaguelaw.com.