Having a comprehensive and valid will is advised for every adult as part of their overall estate plan. Not only will it provide peace of mind for the testator and their family during the testator’s lifetime, but it can also help to avoid costly and time-consuming litigation for the estate and potential beneficiaries after the testator’s death. However, not all wills are created equal. While most people think of a will as a document drafted by a lawyer and signed in front of witnesses, it is also possible to have what is known as a holograph will, which is much less formal, and as a result, can create some issues for the estate if the terms are not clear, or the will’s validity is in question.
Below, we will review the differences between a formal and a holograph will and how these differences can impact the ability of the estate to move ahead efficiently after the testator’s passing.
What is the Difference Between a Formal Will and a Holograph Will?
The requirements for a valid will are set out in the provincial Wills and Succession Act, under section 14, as follows:
- The will must be in writing; and
- The will must be signed by the testator to indicate the testator wished to give effect to the document as their will.
Beyond those basic requirements, the Act also differentiates formal wills from holograph wills as follows:
- A formal will is a written document, often prepared by a lawyer but may also be prepared by the testator, which is signed by the testator in the presence of two witnesses, who also sign the will.
- A holograph will is a handwritten document signed only by the testator.
Both types of wills can be considered legally valid and binding on the estate. However, holograph wills are much more likely to be challenged or deemed invalid. Some of the most common reasons for challenging the legal validity of a will include:
- The testator’s lack of mental capacity when the will was executed
- Lack of clarity of the terms
- Undue influence over the testator when the will was executed
- Forged or fraudulent wills
- Insufficient dependant support
Many of these issues can be avoided by having a skilled lawyer draft the will and by signing it formally in front of witnesses who can attest to the testator’s presence, mental state, and capacity when the document is executed. When a person chooses to create a holograph will, the likelihood of ambiguity of the language and legal errors increases. Further, without witnesses, it can be difficult to confirm the source and authenticity of the will itself and/or the testator’s capacity when it was signed.
Estate Litigation Over Wording in Holograph Will Goes on for Over Ten Years
In a recent decision of the Alberta Court of Appeal, the Court heard an appeal of a decision from a case management judge in a matter that had been in and out of the court system since 2010. The bulk of the litigation had been about the interpretation of a single phrase.
In Kirst Estate (Re), the testator, William Kirst, had died in 2010, leaving a holograph will he had created himself in 1995. The will dictated that this estate should be divided amongst his seven surviving children and that his son, Whitehorn Kirst, should be permitted to live in William’s home “for awhile, to be determined by Him and his brothers + sisters”. Litigation ensued almost immediately after the testator’s death over various issues, including the validity of the will itself.
The ambiguity of the term “for awhile” was the basis for much of the litigation, requiring the court to interpret the testator’s intention. Given that the home was the estate’s most valuable asset, the majority of the siblings wished to sell it and finalize the distribution of the estate, while Whitehorn wished to remain in the home for a longer period.
In 2019, a judge at the Alberta Court of Queen’s Bench interpreted the phrase “for awhile” by giving the words their ordinary meaning. She determined that the testator had intended to give Whitehorn a conditional gift, to remain in the house after his father’s death, but only for so long as all of the siblings agreed. Since the siblings were unable to agree on a reasonable date, she sent the issue to case management for a judge to determine the appropriate time for Whitehorn to vacate the property so it could be sold.
In 2020, a case management judge ordered that Whitehorn vacate the home by April 30, 2020, so it could be sold. This date was moved incrementally following various appeals by Whitehorn, and a final order was granted in September 2020, ordering Whitehorn not to return to the home and the estate trustees to accept any reasonable offer on the home and distribute the assets among the surviving beneficiaries. This order was once again stayed pending appeal by Whitehorn.
In the most recent decision, the Court of Appeal found that there were no reviewable errors in either the 2019 trial decision, which interpreted the term of the will or in the case management decision, which ordered the house to be sold. The Court ordered that the house be listed for sale no later than April 15, 2022.
Holograph Wills with Vague or Ambiguous Terms make it Difficult to Interpret a Testator’s Intentions
This case is an excellent demonstration of the serious issues that can result when a will is drafted informally by a testator, with ambiguous language setting out the directions for the estate. While a holograph may be considered legally valid, the path to settling the estate can be made considerably more difficult when the testator’s intentions are not exceedingly clear. As a result, it is recommended that every person have their will drafted by an experienced lawyer who can help remove the potential for a legal challenge after the testator’s death.
Contact DBH Law in Calgary to speak with our Estate Planning and Estate Litigation Lawyers
At DBH Law, we take pride in the relationships we have built with our clients and the opportunities we have to represent their legal needs as they grow and evolve. Our wills and estate lawyers can help you create a thorough estate plan that ensures your wishes are carried out as intended, and that minimizes taxation and chances of litigation your estate may face.
Our estate planning and litigation lawyers can help you design a will and an estate plan that meets your individual needs. In addition, we provide experienced representation in estate litigation matters. We can be reached by phone at 403.252.9937 or online, and we look forward to the chance to learn about what is important to you and how we can help you achieve that.