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Friday, July 9, 2010

How do I prove handwriting on a handwritten (holograph) will?

When a formal Will is probated, it is supported by a sworn affidavit of a witness who saw the deceased sign. This proves that the Will was actually signed by the right person. With a handwritten (known legally as "holograph") Will, no witnesses are required. So how do you prove that it was actually signed by the deceased and not someone else?

The key lies in the handwriting. You must prove that the handwriting on the Will is the deceased's handwriting. This isn't actually easy these days when nobody actually writes anything any more.

In Alberta, there is a set form called NC9 Affidavit of handwriting of deceased that you must use to prove the handwriting. It will be one of the documents that you submit to the court in your application for probate. Because it's an affidavit, the information in it must be sworn by you, or whoever the person is that knows the deceased's handwriting, in front of a Commissioner for Oaths so that it becomes evidence that the court can use. There are similar forms in other provinces.

In the NC9 affidavit, you will explain how you knew the deceased and for how long you knew him or her before his/her death. You will say how you are familiar with his/her handwriting. For example, you might have written letters to each other, or you might have exchanged written recipes.

If you're having trouble finding samples of the deceased's handwriting or signature, get creative. Where would he or she have written something down? Did he or she have a bank account where he/she gave a sample signature? Can you find out about letters or cards he or she might have written to someone else? Did he/she sign things at work (invoices, letters, work orders) that you could use to compare?

If the holograph Will does have a witness, that is the best evidence of all, though it is rarely available.

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