Writing a will is a crucial step to ensure your final wishes are respected. While most people understand the importance of having a will, many are unaware that, under certain conditions, handwritten (or holographic) wills can also be legally valid in Alberta. In this blog, we will explore how holographic wills fit within Alberta’s Wills and Succession Act, the advantages they offer, and the potential risks and challenges they present. By understanding both the legal framework and the practical implications, you can make an informed decision about the kind of will that is right for your situation.
Understanding Holographic Wills
A will is one of the most important legal documents an individual can create, ensuring that their estate is distributed according to their wishes after they pass away. In Alberta, there are specific legal requirements that must be met for a will to be considered valid. One question that often arises is whether a handwritten or “holographic” will is legally enforceable. While Alberta law does recognize holographic wills under certain conditions, their use can present challenges that individuals should carefully consider.
Legal Recognition of Holographic Wills in Alberta
A holographic will is a document that is written entirely in the testator’s own handwriting and signed by them without the need for witnesses. The Wills and Succession Act of Alberta provides legal recognition for these wills, provided they meet the necessary requirements.
The absence of witnesses distinguishes holographic wills from traditional formal wills, which typically require the presence of two witnesses who sign the document in the testator’s presence. This distinction could make make a holographic will an accessible option in certain situations, such as emergencies where it may not be possible to have witnesses available. However, questions about authenticity, undue influence, or the testator’s mental capacity can arise more readily when no one is present to confirm the circumstances under which the will was written.
While holographic wills may be seen as an accessible alternative in emergencies, their informal nature often leads to disputes and interpretation challenges in probate proceedings, making a more formal will generally preferable for most individuals.
Advantages and Challenges of Holographic Wills
One of the key advantages of a holographic will is its simplicity. Because it does not require witnesses, individuals may find it easier to draft a will without having to make formal arrangements. This can be particularly useful for those in remote areas or those who wish to create a will quickly due to unforeseen circumstances. However, while the informality of holographic wills can be convenient, it also increases the likelihood of disputes or challenges after the testator’s death.
Probate Scrutiny and Potential Disputes
Despite being legally recognized, holographic wills often face scrutiny in probate proceedings. One common issue is whether the document truly represents the testator’s final wishes. Without witnesses, there may be questions about the authenticity of the will or concerns that the testator was unduly influenced, lacked mental capacity, or made errors that could affect the interpretation of their instructions. Courts will closely examine a holographic will to ensure that it was written voluntarily and that it clearly outlines how the testator’s assets should be distributed. Ambiguities or contradictions in the document can lead to prolonged legal disputes among beneficiaries.
Disputes Over Handwriting in Another Language
In Re Chorney (Estate of),the Court of Queen’s Bench of Alberta refused to grant probate to a holographic codicil—a handwritten legal document intended to modify an existing will—that was mainly written in Russian. Although the codicil was ostensibly in the testator’s handwriting, the judge expressed concern about relying solely on an affidavit from a primary beneficiary and co-executor to prove its authenticity. The Court found no independent verification that the deceased had personally written and signed the codicil, nor was there evidence confirming her ability to understand the original will (drafted in English) versus the codicil (in Russian). These concerns led the Court to reject the application and require additional evidence, illustrating how courts in Alberta strictly scrutinize handwritten testamentary documents.
Risks of an Incomplete or Unclear Will
Another challenge with holographic wills is their potential failure to address all aspects of estate distribution. A well-drafted formal will typically includes provisions for the appointment of an executor, specific bequests, and contingency plans in case a named beneficiary predeceases the testator. Handwritten wills, particularly those created in haste or without legal guidance, may overlook these important considerations. As a result, parts of the estate may be distributed according to Alberta’s intestacy laws, which may not align with the testator’s true intentions.
Legibility and Clarity Concerns
Individuals who choose to write a holographic will should also consider how legibility and clarity can impact its enforceability. Since the document must be entirely in the testator’s own handwriting, poor penmanship or unclear wording can create confusion. If the court cannot clearly determine the testator’s intentions, certain provisions of the will may be disregarded or the entire document could be deemed invalid. Ensuring that the language used is precise and unambiguous is essential to avoid potential legal battles among heirs.
Risk of Loss or Destruction
Another risk of holographic wills is their potential loss, damage, or destruction. Unlike formal wills, which are often drafted with the assistance of a lawyer and stored securely, handwritten wills may be kept in places that are not easily accessible after death.
If family members are unaware of the existence of a holographic will or cannot locate it, the estate may be administered under intestacy laws rather than according to the testator’s wishes. To mitigate this risk, individuals who create a holographic will should ensure that their executor or a trusted person knows where the document is stored and can access it when needed.
Why a Formal Will Is Recommended
While a holographic will may be a legally valid option in Alberta, it is generally not recommended as a substitute for a formal will drafted with legal guidance. Even when a handwritten will meets all legal requirements, the potential for disputes, misinterpretation, and omissions can create unnecessary complications for beneficiaries.
A properly drafted formal will provides greater certainty and reduces the likelihood of legal challenges, ensuring that an estate is administered efficiently and according to the testator’s true wishes.
Seeking Legal Guidance
Consulting an experienced estate planning lawyer is highly advisable for individuals considering drafting a will. A lawyer can provide guidance on the best way to structure the document, address potential issues, and ensure that all legal requirements are met. While holographic wills can serve as an emergency option in extraordinary circumstances, a well-drafted formal will remains the most reliable way to protect one’s estate and provide peace of mind for loved ones.
Ultimately, while Alberta law allows for the validity of holographic wills, they come with inherent risks. If an individual chooses to create one, it should be written carefully, stored securely, and reviewed periodically to ensure it still reflects their wishes. However, working with a legal professional to create a comprehensive, properly executed will is likely the best course of action for those who want to ensure their estate is handled smoothly and without unnecessary legal complications.
Contact the Estate Litigation Lawyers at DBH Law in Calgary for Trusted Representation in Estate and Inheritance Disputes
Whether you’re worried about the potential pitfalls of a handwritten (holographic) will or simply want to put a strong estate plan in place, it’s crucial to have access to skilled legal advice. At DBH Law, our experienced estate planning and litigation team offers comprehensive support, from preparing wills and powers of attorney to probate and estate administration. Reach out by phone at 403.252.9937 or visit us online to arrange a confidential consultation and learn how we can help protect your estate and your loved ones’ futures.