In order to create a valid will, there are certain formalities that must be met when the will is executed, such as execution by the will-maker in the presence of two witnesses. Some provinces also recognize another less formal type of will known as a “holographic will”, which is a will made entirely in the will-maker’s handwriting and signed by the will-maker without the requirement that any witnesses be present. These types of wills are more often made in emergencies, where the will-maker is alone and near death and unable to meet the requirements of a formal will.
One of the more famous (and extreme) examples of a holographic will is that of Cecil George Harris, a farmer from Saskatchewan who, trapped under his tractor and near death, carved the following words into its bumper:
“In case I die in this mess, I leave all to the wife. Cecil Geo Harris”.
The bumper was removed from the tractor and brought to court and determined to be a valid holographic will.
In the more recent case of Popowich Estate, the Alberta court had to decide whether a suicide note was a valid holographic will. The deceased had previously made a formal will in which she divided the remainder of her estate between her husband and her mother. At the time of her death, she left behind a note in which she told her mother to “take my money and do things for yourself”. The court ultimately concluded that the suicide note was not a valid holographic will under Alberta law because it did not reflect a deliberate or fixed and final expression of the deceased’s intention to dispose of her property on death.
In BC, holographic wills are not recognized, and documents that fail to comply with the technical requirements for execution of a will cannot be given legal effect. However, when the new Wills, Estates and Succession Act (“WESA”) comes into force, the courts will have an extremely broad discretion to cure deficiencies in the proper execution of a will. WESA allows the court to order that any “record, document or writing, or marking on a will or document” be as fully effective as a valid will, if the court is satisfied that it represents the testamentary intentions of the deceased. This language may validate not only holographic wills in the traditional sense, but also electronic documents, emails, and handwritten changes made on an old will. It remains to be seen how widely this discretion will be exercised by the courts in BC and how the case law here will compare to jurisdictions that already recognize holographic wills.