Holographic wills in BC

A holographic will is one that is hand-written (not to be confused with a printed page where you fill in the blanks). It's a less formal way of making a will, and accordingly has less formal requirements for validity. For example, in jurisdictions where holographic wills are allowed, they do not require witnesses.

Currently in British Columbia, holographic wills are not legally recognized but that may change in the future. Click here to read an article from the law firm of Clark Wilson LLP that talks about what changes may be expected with new legislation being introduced in BC.

Can a suicide note be a holograph will?

My friends over at www.allaboutestates.ca have recently blogged about whether a suicide note can be a hand-written will. They took a look at a new case from Alberta, the Popowich Estate, where a woman left a nine-page note before taking her own life. The note appeared to give her full estate to her mother. The will that the deceased had in place before the note left half of the estate to her mother.

To read the post, click here.

The court found that although a suicide note CAN be a hand-written will, in this particular case it was not.

This is a heartbreaking situation for anyone to deal with and nobody is going to feel like getting involved with the courts when they are grieving and shocked. However, it might be the only way to get an answer on what the deceased really intended to do.

Holographic will names only 1 of 4 kids - now what?

 Even though I try to answer only one question at a time, the reality is that most estates are not simple, and the questions overlap each other. An example of this is the note below that I received from a reader. His question is simply stated, but the answer is complicated. Here is the question:

 

"My brother died and his ex wife has stated she has a 'holographic' will which names only one of his four children as beneficiary. He has set beneficiaries for his RRSPs, pension and life insurance which include only two of his four children. There is no identified executor for his estate. Do his adult children not included in this will have any rights to his assets?"

 

There are several issues to look at here, but the main one is the validity (or otherwise) of the will. A holographic will, if properly made, is legally valid in most places in Canada. But I've always found it wise to withhold any judgment about whether any particular holographic will is valid until I've had a chance to examine it. This is because most people have no idea what it really means for a will to be "holographic" and refer to all kinds of invalid things as being holographic wills when they are no such thing legally.

 

You said that there is no executor named in the will. This means that nobody has the legal right to administer his estate. Not even the ex-wife who physically has possession of the will. When a deceased person dies without naming an executor, the court can appoint someone to act as administrator. When there is a will but no executor, which really isn't that unusual given that executors may renounce or pass away, the will is taken to the court. The judge then will appoint someone to administer the estate according to the will.

 

There is a hierarchy for who can apply. Assuming that "ex-wife" means they were divorced and not just living apart (lots of times I hear about an "ex" only to find out they are still actually married), she would not be the first in line. She or someone else in your family needs to take the will to an experienced wills and estates lawyer to find out a) if the will is valid and if so, b) who has the right to apply for probate.

 

Now, the reason I'm making such a fuss over the validity of the will is that if the will is valid, your brother's children not named in the will are probably out of luck. If the will is invalid, your brother's estate will be distributed according to the intestacy laws of your province. That usually includes all children, but that will depend on the status of any spouse and the size of the estate.

 

The general rule about adult children is that unless they are handicapped and financially dependent on the deceased, they are not entitled to anything from the estate and therefore have no grounds to contest a will just because they didn't get anything. An exception to this rule is British Columbia, where they  have the Wills Variation Act that allows children to contest a parent's estate on fairness grounds.

 

Keep in mind that since the RRSPs, pension and life insurance policy have named beneficiaries, they aren't included in the estate. They will flow directly to the named beneficiaries. Even if the will were to be contested and a different distribution set out by the court, it will only apply to the assets in the estate.

 

In this situation, you need advice from a lawyer who can look at the will itself, and who is thoroughly familiar with estate laws in your province.

 

 

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.

The many types of wills - a dictionary

A will is a will, right? Most of us think we'd know a will if we saw one, but in fact there are several types of wills out there. Whether you're an executor trying to deal with an estate or you're trying to figure out what kind of will you need yourself, the array of possible wills can be confusing. I've often heard and seen the names of the various types of documents being misused, even by professional advisors. Wouldn't it be great if you only had a dictionary to tell you the difference between them? Read on, as I've devised my own little lexicon of wills to help you navigate the world of wills:

Codicil - This is an amendment to a will that is made when there is already a valid will in place. It is intended to make only a small change or supplement to the existing will without invalidating the will. It has the same signing and witnessing requirements as a formal will. Codicils, popular in the days when wills had to be typed individually, are beginning to fall out of favour with the advent of technology that allows us to prepare a new will quickly. They are valid everywhere in Canada.

Formal will, a.k.a. conventional will - This refers to a standard will that is prepared on a computer or word processor and that follows the rules of a valid will. This usually means that the will is signed at the end by the testator (i.e. the person whose will it is) in front of two witnesses who are present at the same time. These are valid everywhere in Canada.

Holograph will - This refers to a will that is 100% in the handwriting of the testator. It doesn't need witnesses, but it must be signed and dated by the testator. Holograph wills are valid in most, but not all, Canadian provinces and territories.

International will - This type of will is relatively rare, as it is only useful to high net worth people who have probatable assets in different countries and who do not choose to prepare separate wills in those countries. The form of an international will is set by a covention that is recognized internationally.

Joint will - This refers to a will which is intended to cover the wishes of two separate people (usually a husband and wife) in one document. It's an old-fashioned concept which was based as much on the wish to save typing time as it was on the lack of women's property rights. Today these wills are almost never prepared in Canada due to the legal complications that often arise when one person dies, leaving the other without a will.

Living will - A living will isn't actually a will at all. It's an American concept, a document in which an individual leaves instructions to cover an end-of-life or "pull the plug" situation. In Canada, living wills form part of health care directives (also known as personal directives, advance care directive and health care proxy, among other variations).

Military will - In general, an individual has to be at least the age of majority to make a valid will. An exception to that rule exists so that personnel of the armed forces, mariners and seaman in the course of a voyage may make a will even if they are under age. This type of will needs to be signed and dated but does not need witnesses. It may be formal or holographic. The phrase "military will" is more of a slang term than a legal term.

Mirror will, a.k.a. reciprocal will - This type of will is usually made by husbands and wives, but may also be made by others. Two mirror wills contain identical provisions, such as a husband and wife both leaving their estate to their children when both parents have died. They may be formal or holographic. I have often seen these wills referred to as mutual wills, but they are not. When a couple has mirror wills and one of them dies, the surviving spouse is free to change his or her will if they so choose.

Mutual will - This is a specialized type of will in which the two people (usually husband and wife) who make the wills specifically agree to a certain arrangement of disposing of their property. The agreement is a contract that is enforceable by law, so when one spouse dies, the other is not legally able to change the will. The agreement has to be spelled out very specifically in the document, or in a separate side agreement that is referenced in the will. These wills are not seen every day, but are still used when appropriate, such as in second marriages when both parties agree to leave their estates to their own children. These wills are almost never holographic as it's almost impossible to get the contractual obligations correct without the help of a lawyer.

Notarial will - This term refers to a will made in compliance with Quebec's Civil Code. The will would be signed in front of a notary and a witness.

Holograph Wills - Testators Beware!

Have you ever heard that story about the farmer who was trapped under his tractor and wrote his Will on the fender? It's a true story and it's discussed in this article. The article is from Ontario, but the law as described is the same in Alberta. Not all provinces allow holograph (hand-written) Wills, but this excellent article from Advocacy Centre for the Elderly does a good job of summarizing the law for those areas that do. Click here to read it.

What if both witnesses to the Will are deceased?

When a Will is sent to the court to be probated, there has to be evidence that the Will was properly signed and witnessed. This evidence is normally given in the form of an affidavit, which is a written, sworn statement given by one of the people who signed their names as witnesses to the Will. After it is completed and sworn, the affidavit is attached to the Will and they are kept together until they are needed.

In most jurisdictions, the affidavit can be prepared as soon as the Will is made. However, it sometimes happens that the affidavit was never prepared. This could be because it was not allowed by law, or because the Will was done long ago before the law allowed affidavits to be made while the testator was still alive, or simply because nobody ever got around to doing it.

This sometimes leads to a situation where a testator has died, and the Will needs to be sent to probate, but there is no affidavit. You will not get a Grant of Probate without it (unless of course you are probating a handwritten Will). If one of the witnesses to the Will is alive and able to sign an affidavit, then he or she can provide the document you need.

Unfortunately there isn't always a witness available. Sometimes both witnesses are deceased, if the Will was made a long time ago. Or it could be the case that you can't locate either of the witnesses, or that the only one you can find has lost mental capacity or has absolutely no recollection of the Will being signed. Then what do you do?

There are two possibilities. You can do one or both of them.

The first possibility is that there was another person in the room when the Will was signed but who did not sign their name as a witness. That person can prepare a sworn statement explaining the situation and swearing that they saw the proper formalities followed when the Will was sworn.

The second possibility is that there is someone who can swear that the signature on the Will is the signature of the deceased.

It would be best if the person who swears either of these documents is not a beneficiary under the Will. It would also be best if the person is not the spouse (legal or common-law) of the executor or of a beneficiary.

The perils of home-made Wills

The unfortunate thing about making a mistake in a Will is that the mistake usually isn't discovered until the testator has died and there is no chance to correct the error. The family and friends left behind are the ones trying to figure out what to do with a Will that causes the problem. Often it ends up being decided by a judge.

I recently saw a Will of a deceased person who left a large sum of money to a family member on the condition that the family member stop smoking. The Will went on to say that if the family member started smoking again within two years, the money had to be repaid to the estate. This is completely unenforceable. And even if it were enforceable, what happens to the money if it is repaid to the estate?

I saw another Will in which the testator divided up her entire estate among family members. After that, she said that she wanted to give her pets to a certain person, along with a yearly amount of money to cover the expenses for the pets. But if she has already given away her estate, where is the yearly money coming from?

Another Will left each of the testator's six children an individual piece of real estate. Unfortunately, the testator didn't think about taxes. When real estate is transferred to a beneficiary, it is subject to capital gains tax to be paid by the estate, unless it is the testator's principal residence. This person had six parcels of land and only one could be the principal residence. There was no cash in the estate to pay taxes, so at least one of the properties would have to be sold.

What all of these cases - and many, many more - have in common is that the wishes of the testator are simply not going to be carried out if the Will is worded in the way the testator directs. Yes, there is a Will in each case, and on the face of it, each is a valid Will, but the documents are ineffective.

Two of the above-mentioned Wills were home-made. I caught the other (the one with the pets) when it crossed my desk. I believe that if your affairs are completely straightforward and simple, you may be able to make your own Will, though I never think it's a very good idea. However, these examples show that even people who believe things to be straightforward (six children, six properties, sounds simple, right?) can benefit greatly from estate-planning advice.

There is very little value in putting together a Will yourself if all you're doing is creating problems for your spouse or children or executor. Wills like those I've mentioned here usually end up being interpreted by a judge, which means that instead of paying to get a Will made, your estate is paying a lawyer to make a court application. The Will would have been a heck of a lot cheaper.

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.

Home-made wills - common mistakes people make

We are all entitled to write our own Wills without asking a lawyer for help. The problem is that people who are not trained in the law almost always make mistakes and they never find out about them. Their families left behind after the person dies are the ones who find out about the mistakes.

I estimate that 90% of the clients I've met over the years start off their conversations with me by saying that their affairs are simple and they want simple Wills. In some cases it's true that they only need simple Wills. But in most cases they only think they need simple Wills because they don't know what needs to be in a Will.

There are some basic elements that must be in every Will. They are:

• appoint an executor
• appoint a guardian for minor children
• describe a distribution of assets
• give the executor the powers he or she needs to carry out your instructions

Sounds simple doesn't it? But let's look at that third element for a moment. Describe a distribution of assets seems easy enough. Most people who write their own Wills will say something like "I leave everything to my wife." But what happens if your wife dies before you do? Who gets your estate then? The children? Do they get equal shares or have you helped one of them a lot during your lifetime? Does "children" include step-children? Did you know that it automatically includes illegitimate children? How old do the children have to be to inherit? Who looks after the money for minors? Can they use any of the money on an emergency basis? What if you leave everything to your wife but you were married before and have children from that marriage? How do you plan to deal with that?

A very common mistake in home-made Wills is to think that everything will be exactly as it is today when you pass away. People don't think about whether someone else will die first or that they will have grandchildren etc.

Tied into that is the common mistake of making things too simple, as in the example of "I leave everything to my wife". That's fine if your wife survives you and you do not have minor children of a previous relationship, but it just doesn't cover enough possibilities.

Another issue with home-made Wills is that people, again keeping things too simple, do not properly describe either the gifts they want to leave, or the people they want to leave it to. They just aren't clear enough. For example, a person might say in his Will that "I leave my wristwatch to Joe." The person who wrote the Will knows who Joe is. But what if that person has an uncle named Joe who has a son named Joe Jr who in turn has a son named Joey? Who gets the watch? And what if the person actually owns two watches? One might be worth $25 while the other is worth $2,500. Which one did he mean to give to Joe? Will there be an argument over it? This kind of description lands estates in courtrooms to clarify what was meant.

An even bigger problem is that of giving the executor enough power and authority to carry out your instructions. Say you own a house, and the house is sold so that the money can be shared among all of the beneficiaries of your estate. Did you know that the sale has to be approved by all of the beneficiaries? What if one of the beneficiaries is a minor? Do you know who has to sign on behalf of the minor? And did you know that you can eliminate this whole issue by putting one short, specific power in your Will?

Home-made Wills almost never contain any powers at all, never mind a full set that would allow smooth administration of the estate. Your executor must call on helpers such as accountants, realtors, lawyers and appraisers. Your executor has to complete tax returns in a way that is in the best interest of the estate. Your executor has to invest the money in the estate, either for a short time while the estate is administered or for a long time until minors reach legal age. There are dozens of responsibilities attached to being an executor and your Will should contain all the powers the executor will need to do the job without resorting to asking the court for permission or clarification.

Finally, a mistake that is often made with home-made Wills is that they are not properly executed. There are laws that set out the requirements for signatures and witnesses and people who are not lawyers don't always know what those laws are. For example, if one of your witnesses is also a beneficiary, that beneficiary can't inherit anything from you.

When clients ask "Can I do this?", I always respond that in estate planning, that's not the question. The question is "Should I do this?" So while you can write your own Will without legal advice, should you?

Videotaped wills

I've been asked this question a few times in the last few years. Back when I first started doing Wills (more than 20 years ago - time sure flies!) nobody ever asked me if they could videotape their Wills. It makes sense, given how technology is more and more an integral part of our lives, that this would be on the legal horizon.

I can also see how the idea has gained appeal, based on fictional stories such as "The Testament", and "The Ultimate Gift" which certainly made excellent use of the idea of a videotaped Will.

Right now, though, you cannot make a legally binding Will in Alberta unless it is written down. It doesn't really matter what you write it on. I once probated a Will that had been handwritten by a woman entirely on post-it notes.

The Wills Act of Alberta sets out requirements for a valid Will. In addition to the Will having to be in writing, it must also be signed by the testator (the person whose Will it is) in front of two witnesses, who then sign in front of each other and in front of the testator. If the Will is completely in the testator's handwriting (known as a holograph Will), no witnesses are required. Think about what "completely in your handwriting" means if you are planning to use a Will Kit or download a form to use. You must follow the formal rules for Wills if you are not using 100% your own handwriting.

There will eventually be changes to the rules about what makes a valid Will in Alberta, but right now the rules say that Wills must be written down.