Probating a Handwritten Will in Ontario: Holograph Will Rules

Many families find a handwritten note or letter in a drawer or safety deposit box after someone dies and wonder whether it counts as a will. Ontario does allow one kind of handwritten will, but there are conditions, and the court will want proof that the writing really is the deceased's.

This article explains what a holograph will is, what the court generally needs to see before it will accept one, and what else is involved in the probate application. It is general information, not advice on your particular document.

What a holograph will is and when it is valid

A holograph will is one written wholly in the deceased's own handwriting. Under the Succession Law Reform Act, a will made wholly in the testator's own handwriting and signed by the testator is valid without any witness.

That is an exception. An ordinary formal will is valid only if it is signed at its end by the testator, or by someone else in the testator's presence and at their direction, and the signature is made or acknowledged in front of two or more witnesses present at the same time, who then sign in the testator's presence.

Where the signature sits on the page can matter. A will, holograph or not, is valid if the position of the signature makes it apparent on the face of the will that the testator meant the signature to give effect to the will. A signature at the very bottom is the safest case, but a signature elsewhere is not automatically fatal.

The proof the court asks for

Because nobody witnessed a holograph will being signed, the court needs another way to be satisfied that the document is genuine. Rule 74.04(1)(d)(ii) requires an affidavit in Form 74F confirming that the handwriting and signature are the deceased's.

Who is suited to swear that affidavit depends on your situation, so it is worth confirming with a lawyer before you choose.

The affidavit must be signed before a Commissioner for taking affidavits, who must also sign it. The original will, and any codicils, must be attached as an exhibit to an affidavit.

The rest of the probate application

A holograph will goes through the same application as any other will. The usual package includes the Form 74A application, proof of service on beneficiaries (Form 74B, or 74B.1 if a lawyer certifies service), a Form 74C draft certificate, the original will and codicils, an affidavit about the will (Form 74F in the holograph case), proof of death, any renunciations and consents on Form 74G, and a bond on Form 74L or 74M where one is required.

• File with the Superior Court of Justice in the county or district where the deceased had a fixed place of abode.
• If the deceased had no fixed place of abode in Ontario, file where the property is located.
• Applications may be filed by email, but original wills, codicils, bonds and certified copies must still be filed on paper.
• Applications are typically processed within 15 business days, and the registrar may ask for more information.

If the will has been altered or marked, an affidavit in Form 74E is used where needed. Handwritten crossings-out, notes in the margin or added pages are worth pointing out to a lawyer early.

If the handwritten document has defects

Sometimes the document is not wholly handwritten, for example a typed page with a handwritten signature, or it is unsigned or signed without witnesses. In that case it may not qualify as a holograph will or a formal will.

If the Superior Court of Justice is satisfied that a document that was not properly executed sets out the deceased's testamentary intentions, it may order the document valid. This applies to deaths on or after January 1, 2022, and it does not validate electronic wills.

Whether a particular document meets that test depends on the facts, so it is worth confirming with a lawyer. If the document is not accepted, the estate may be handled as though there were no will, with a different list of who inherits.

Who must be told, and what to do next

The application must be served on every beneficiary, including charities and contingent beneficiaries, before it is filed. If a beneficiary is a minor, service is also required on the parent or guardian and on the Children's Lawyer. For a mentally incapable adult, service is on the guardian, the attorney or the Public Guardian and Trustee, depending on who has authority.

• Keep the original document safe and do not write on, staple or alter it.
• Make a clear copy for reference, and note where and when it was found.
• Think about who could confirm that the handwriting and signature are the deceased's, since Form 74F must say so.
• List every beneficiary named, including charities and children.
• Look for other wills or codicils, since a later document may change things.
• Speak with a lawyer before filing if the writing, signature or dating raises any doubt.

Frequently asked questions