In a recent Alberta decision, the court was tasked with deciding whether directives hand-written on sticky notes that purported to amend a testator’s previous will constituted a valid holograph will. A holograph will is a will that is entirely hand-written by the testator and can be deemed valid if it meets all the statutory requirements set out in legislation.

Testator Alters Previous Will’s Instructions With Sticky Notes

The testator had made a will in 1997. He had five sons, several grandchildren, and a wife.

On March 1, 2018, he made notes on two sticky notes, in which he wrote, in part, that he was making “changes to my earlier will”. The two notes featured a combination of hand-writing and printing. At the bottom of the notes, the testator included his signature, and one of his sons signed as a witness.

The sticky notes significantly altered his 1997 will by, among other things: changing the executor, excluding two previously-identified properties, doubling the gifts to his five sons, expanding the gift-receiving-grandchildren set to ten, and making his wife the residual beneficiary. In other words, it effectively rewrote the entire 1997 will.

The testator died four days after writing the sticky notes.

An application for probate was brought on the basis that the will itself was valid, but seeking an order on its validity in light of the sticky notes. 

Court Considers Impact of Witness’ Signature on Sticky Notes 

After setting out the relevant provisions under Alberta’s Wills and Succession Act (“WSA”), the court began its analysis by looking at the impact of the son’s signature as a witness on the sticky notes. 

This consideration was relevant because under s. 16 of the WSA, a holograph will must be “wholly in the testator’s own handwriting and signed by the testator without the presence or signature of a witness”. As such, the court had to consider whether the signature of a witness precluded a finding of a holograph will.

The court answered the above question in the negative. 

It noted that previous case law determined that although a witness’s signature is not necessary to the validity of a holograph will, the presence of such a signature does not, in turn, make a holograph will any less valid.

Court Sets Out Requirements for Holograph Will

Other than the above-discussed requirement for the testator’s signature, the court then set out the other requirements for a finding of a holograph will as set out in the WSA:

  • The testator must be old enough (i.e. over 17);
  • The testator must have had testamentary capacity;
  • The holograph will must be “in writing”;
  • The signature must indicate the testator’s intention to give effect to the writing in the document as the testator’s will.

The court found that the testator had met almost all the requirements on the face of the evidence. However, it set out to determine whether the testator had in fact indicated his intention to give effect to his written instructions as his last will.

Did The Testator Intend the Sticky Notes to Be His Will?

The court reviewed previous case law on the matter and held that the essential quality of the term “testamentary intention” is that there must be a deliberate or fixed and final expression of intention as to the disposal of the testator’s property on death.

As such, the court set out to determine whether the sticky notes effectively represented the testator’s deliberate or fixed and final expression of his intentions.

Ultimately, the court concluded that the testator had meant for the sticky notes to represent his testamentary intention, for some of the following reasons:

  • by signing it at the top, which is not actually required by the WSA, and at the bottom, the testator signaled the seriousness with which he approached the exercise;
  • the opening wording – “changes to my earlier will” – clearly reflected his intention to change his 1997 will;
  • the distribution covered his entire property and nothing was left undistributed;
  • he was 91 years old when he signed the document;
  • while a witness was not required, the presence of a witness reflected the apparent seriousness with which he approached the exercise; and
  • nothing in the document reflected any tentativeness or uncertainty about his intentions about any aspect.

Finally, with regard to the sticky notes themselves, the court observed that while compact in size, they nonetheless constituted a document that contained all the typical building blocks of a will. 

Court Rules That Sticky Notes Constitute Valid Holograph Will

For the reasons outlined above, the court ultimately ruled that the sticky notes constituted a valid holograph will.

In addition, considering the changes made by the sticky notes, the court found that they effectively displaced, and therefore revoked, his 1997 will.

In the result, the sticky notes, therefore, replaced the 1997 will and the testator’s estate would be distributed as directed therein.

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