Is my hand-drafted will valid?

Posted by on November 12, 2009 in estate planning

In 1948, Cecil Harris, a farmer, found himself trapped under his own tractor. Knowing that the end was near, he carved onto the fender of his tractor: “In case I die in this mess I leave all to the wife. Cecil Geo. Harris.” Mr. Harris later succumb to his injuries. The will was duly accepted as being legitimate and his estate distributed to Ms. Harris as per his wishes.

The case is rather famous/infamous in all introduction to wills and estates classes in law school since it addresses the topic of whether a hand-drafted will, or a holographic will, is an acceptable and binding legal instrument.

What makes holographic wills rather unique is the history and forms of wills itself. If you ever read a will, you will notice that the language is rather archaic. The reason is that the interpretation of wills language is based on centuries of common law (judge made law) and many of the archaic phrases have meanings attached to them- in other words, some judge centuries ago defined what “happy home life,” a phrase often found in describing the standard of care for a minor child, meant in specifics.

A traditional will also has a prescribed form (in writing, signed by the testator, witnessed by two people over 18 and of sound mind and who are not beneficiaries and, in some jurisdictions, an accompanying affidavit of execution by the witness). Many holographic wills have neither the language or form required of a traditionally recognized will which has made recognizing this type of will problematic.

Nonetheless, some jurisdictions do accept holographic wills BUT it must be hand-written and not typed and it does not even have to be signed in some cases; the form varies from jurisdiction to jurisdiction and you should seek advice on this matter. However, by and large, it is a completely home-made will in all forms, shapes and sizes.  The reasoning for this lack of form is that the underlying policy of accepting a holographic will is that it should be a will made in emergency situations only and accepted for this reason primarily.

For this reason, a holographic will in most jurisdictions that accept them can replace an existing will but, in some jurisdictions, CANNOT amend an existing will (an amendment to a will is known as a codicil and must have the same requirements as a traditional will to be valid).

Thus, for the raging DIYers, there are several issues. Depending on where you live, a holographic will may or may not be recognized. Even if it is recognized, it must be of a certain prescribed form (for example, California requires you to date the will; New York only recognizes a holographic will from a member of the armed forces; Alberta recognizes a holographic will but B.C. doesn’t; Ontario requires no witnesses; Quebec case law only recognizes the non typed parts etc. etc.). It is all a hodge-podge of differing laws and case law.

It is best not to take your chances and draft a holographic will unless you are truly in an emergency and do not wish to die without a will. The more prudent route is to make drafting wills part of your personal finance process either through a qualified professional or as part of a will kit.

3 Comments on Is my hand-drafted will valid?

By The Rat on November 12, 2009 at 11:03 pm

You know, I have been so preoccupied thinking about PF matters on my own blog as well as my own investments in general that I didn’t even think about getting a will done up. You’re right in that a will should be part of everyone’s personal finance process.
Nice post.

By Currency Conversion, Wills and Deals – Nov 15, 2009 | Million Dollar Journey on November 15, 2009 at 6:44 am

[...] Is my hand-drafted will valid? @ Thicken My Wallet [...]

By This and That: 100x ETFs, TFSAs and more… | Canadian Capitalist on November 19, 2009 at 6:54 pm

[...] While some jurisdictions may accept hand-written, holographic wills as valid, Thicken My Wallet says that the prudent course is to draft a will through a lawyer or a will kit. [...]

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