Estate Planning

Handwritten Changes on a Will

By Hull and Hull LLP

The formalities in the Succession Law Reform Act are strict and unforgiving.  Case law suggests that Ontario courts have no discretion to depart from compliance with the SLRA's requirements in determining the due execution and formal validity of a Will and its provisions.   

Handwritten alterations made subsequent to the formal execution of a Will are valid in only two situations:

1. If the alterations are signed by testator in the presence of two subscribing witnesses who also sign near the changes or sign at the end of a memorandum elsewhere in the Will that refers to the changes (s. 18(2) SLRA); OR

2. If the alterations constitute a valid Holograph Will or Codicil i.e. they must be wholly in the testator's handwriting and must be signed by the Testator (s. 6 SLRA).

In order to be a valid Holograph Codicil the markings on the Will must:

• Be capable of standing on their own without reference to the printed text around them; AND
• Indicate a firm testamentary intent.

Any changes that completely obliterate portions of the Will, such that the provisions cannot be discerned from an inspection on the face of the document without resort to artificial means or extrinsic evidence, will be effective to remove said portions from the Will. 
 

Sharon Davis

Full post as published by Toronto Estate Law Blog on October 19, 2010 (boomark / email).