101-year-old woman battling for home over handwritten deed

I read the attached article from www.sbsun.com about 101-year-old Lois Risse, and all I could think was "what a mess". How sad that this woman has to undergo the stress of this legal battle and the surrounding circumstances, when it could easily have been prevented.

It appears that since Mrs. Risse's husband died 30 years ago, the people around her may well have been taking advantage of her. She has made mistakes herself as well. Click here to read the story. Shortly after her husband's death, she sold her home to a friend using a handwritten deed. There was a verbal agreement that the deed would not be recorded until Mrs. Risse passed away, and an assurance by the buyer, Mr. Neff, that Mrs. Risse could live in the home for as long as she wanted.

The story became more complicated, including a friend who moved in and kept Mrs. Risse isolated from her neighbours, persuaded Mrs. Risse to buy him a motorcycle and didn't leave until the sheriff's office forced him out. Then of course, there was the adding of Mr. Neff's name to Mrs. Risse's bank account shortly after her husband died. Eventually the court appointed a conservator for Mrs. Risse to protect her from the people in her life, and the conservator, not knowing about the sale deed, applied for a reverse mortgage for Mrs. Risse. At that point, Mr. Neff recorded the deed.

Now everyone is in court to sort out various legal issues. On my reading of the article, each step forward seems just to lead to more questions.

As I mentioned above, most of this heartache and financial loss could have been avoided. The following are some of the errors that led to this situation:

1.  Creation of a hand-written document with no legal advice. The house was Mrs. Risse's largest and most important asset, and now she has lost it. An asset of this importance is worth the cost of seeing a lawyer for an hour to make sure it's protected.
2.  Verbally agreeing to terms that vary a written agreement without documenting them in any way. Now it's one person's word against another, and one of those people is 101 years old.
3.  Not keeping a record of money supposedly paid under the agreement. Apparently neither Mrs. Risse nor Mr. Neff can produce receipts for payment, though he insists it has all been paid. Now Mrs. Risse's bank records are being examined by strangers to try to piece together what happened, and neighbours are pitted against each other with accusations of taking advantage of Mrs. Risse.
4.  Adding Mr. Neff's name to the bank account. I can't imagine what purpose that would serve for Mrs. Risse. Now it's almost impossible to figure out where money went and to verify Mrs. Risse's claims that her money was disappearing.

Unfortunately, many of the mistakes made here are made pretty often. People seem to think that insisting on legalities or formalities between friends or neighbours is insulting. This story is an example of what can happen even when you trust someone.

Handwriting analysis of the signature on a will

Have you ever wondered about how a real life court would deal with handwriting experts? I say "real life" to distinguish actual courts from our dramatic and exciting - but fictional - counterparts on TV. Handwriting is an issue from time to time when there is a question about whether the signature on a will is really that of the deceased, and when that happens, handwriting experts are usually called in.

Justin de Vries, who blogs at www.allaboutestates.ca, has provided an excellent overview of recent law in this area. Click here to read his article.

The bottom line is that forensic handwriting analysis is acceptable to judges, but doesn't necessarily make or break the case. The courts seem to want to be able to make their own judgments about the validity of the handwriting. Mr. de Vries' article is interesting reading, so check it out.

Holographic wills and capacity

My friends over at www.allaboutestates.ca have posted something really interesting that some of you will recognize. An elderly parent who lacks mental capacity keeps making handwritten (or "holographic") wills. Holographic wills are legal in most parts of Canada, assuming that the parent has the mental ability to make a will. Is your parent doing this? And if so, how are you dealing with those wills? Click here to read an article that gives some advice on what to do.

When are handwritten changes to a will valid?

In this article, Megan Connelly looks at a recent case from Ontario that had to determine whether handwritten changes to a Will were valid or not. We lawyers always advise clients not to write on their Wills, but that doesn't seem to stop anyone. Unfortunately for the woman in this case, the judge found only some of her changes valid. Click here to read the article.

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.