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A holograph will is one that is written entirely in the handwriting of the person who is making the will, known as the testator. The testator must sign and date the will but it does not need to be witnessed. A stationer`s form, or will kit, as they are often called, will not be considered a valid holograph will since all portions were not written in the testator`s handwriting. The dangers of will kits were discussed in Concepts Newsletter, Fall 2011.

In Niziol v. Allen, 2011 ONSC 7457 (CanLII), the Court was asked to decide whether a handwritten document prepared by the deceased and dated August 29, 2001 (the “2001 Will”) qualifies as a holograph will and whether it revoked a previous formal will prepared by a lawyer and executed by the deceased in October 1998 (the “1998 Will”). The main problem was that the holograph will did not contain the statement usually included by lawyers in typewritten wills to expressly revoke all previous wills by the testator. The Court observed the contents of the 2001 Will and extrinsic evidence relating to it as dictated by case law. Specifically, the deceased:

• fell out with her daughter “Melissa” in September 1999 and had not reconciled with her before death. The 2001 Will did not leave any property to Melissa

• historically, did not always include all of her four children in her Will, since her daughter “Lisa” had been left out of both the 1998 Will and the 2001 Will

• used the words “I Glenda Niziol” which showed that it was expressed in testamentary or “will making” terms

• clearly identified intended and exclusive beneficiaries, including a trust for her two sons

For these reasons, the Court determined that the 2001 Will qualifies as a valid holograph will. It also concluded that the 2001 Will did indeed revoke the 1998 Will because the terms of each will were inconsistent with each other and could not both be operative. The fact that the 2001 Will disposed or showed an intention to dispose of all of the testator’s property also supported this conclusion.

Thus the Court concluded and declared that the 2001 Will is the valid and last will and testament of the deceased. The 1998 Will was therefore of no legal effect.

A more complex holograph horror was outlined in CIBC Trust Corporation v. Horn, 2008 CanLII 39783 (ON SC). Because a number of handwritten, undated and unsigned notes were later added to the deceased’s typewritten will and codicil both signed on September 5, 2000, the Estate Trustee sought the direction of the Court as to how to administer the estate. Specifically, the handwritten alterations were made using at least three different types of ink. A colour copy of the will indicated:

“there was no consistency in the manner in which the changes had been made. Some words were crossed out, other words added above and beside various portions of the will. Some of these added words and phrases were initialled, some portions were crossed out and not initialled, some portions were crossed out with words added above or beside the crossed out portions, wording was added without being initialled, the word “yes” was written beside certain crossed out portions, not initialled, newly inserted wording that appeared to refer to different bequests, uninitialled and an X placed beside a bequest with writing such as “No”, “Yes”, “O.K.” with no initials. Different coloured ink was used suggesting that the changes had been made at different times. None of the alterations related to the appointment of CIBC as estate trustee.”

In addition, three additional handwritten unnumbered paragraphs were added to the will.

In the end, after extensive analysis and investigation, the Court concluded that:

“none of the handwritten changes or additions to the will and codicil of Mrs. Cake have the effect of changing the provisions of the typewritten will and codicil. Accordingly, CIBC is directed to administer the estate in accordance with the provisions of the typewritten will and codicil properly executed on September 5, 2000 without considering any of the handwritten changes or additions.”

If the handwritten changes truly reflected the testator’s last wishes and intentions, this is an unfortunate outcome. The bottom line is that if you are going to do a holograph will or holographic changes to an earlier will, rather than a will prepared by a lawyer, you risk not only expensive and often unnecessary estate litigation, but your wishes may not be carried out.

In our next blog, we will discuss more of the benefits of discussing one’s will and estate plan with a professional who then prepares these important legal documents.


Andrea Kelly, Lawyer, has extensive experience in wills, trusts, powers of attorney and  estate administration matters.  She provides clients with a high standard of timely professionalism and expertise, incorporating a very thorough fact finding process.  This is quite often enlightening for her clients and facilitates individually tailored services.  If you would like to know more, feel free to use the easy contact form or read Andrea’s bio.


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