Holographic Wills – The penny wise, pound foolish approach to estate planning.
As a Wills and Estates lawyer, I’m often asked to give presentations on Wills and other estate planning documents. I’m always pleased at the opportunity, because it allows me to share crucial information, dispel myths, and answer common but imperative questions about Wills in general. I always start a presentation by answering two questions: 1) “Why do I need a Will?” and 2) “Why do I need a lawyer to write my Will? Can’t I write my own?”. The answer to the first question is simple enough: To appoint an Executor and to leave directions for the distribution of your wealth and property. The answer to the second question is a bit more elaborate, and it’s the subject of this blog entry.
Legally speaking, yes, you can write your own Will so long as the document is entirely in the writing of the will-maker and signed at the end by the will-maker. This is what’s known as a Holographic Will. They’re completely legal in Manitoba, and in most other jurisdictions in Canada. There are some famous cases in Canada involving Holograph Wills and whether a particular Will should be enforceable on the estate of the deceased person. If you’re interested, please look up the case of Cecil Harris and his tractor-fender Will, which was upheld in a Saskatchewan court as a legal Will. It is a fascinating story, and a compelling ‘cautionary tale’.
So, what’s the problem? Why do you need a lawyer if you have a perfectly good quill and some parchment at home to write your Will with? The trouble is that all too often self-written Wills are defective in some way, shape or form. There are dozens of ways that Holographic Will’s can go awry. Using witnesses (there should be none), typing up the Will itself (it must be entirely hand-written), and vagueness in gifts (who gets what?), are all classic examples.
Same goes for the other common culprit for defective Wills; the store-bought Will-Kit. Using a Will-Kit can create even more issues. A Will-Kit Will is not fully typed, and it’s not fully handwritten – it’s somewhere in between. Now the court has to get involved to have the Will-Kit Will validated, if it wasn’t done properly. When preparing Will-Kit Wills and Holographic Wills alike, people make the mistake of being overly specific in their distribution of wealth. For example, Child A gets the cars and cottage, Child B gets the house, Child C gets a bunch of cash. That’s all well and good on the day it was written, but now the cars and the house have been sold, and the cash has diminished over the 20 years since the Will was written! And what about anything not specifically mentioned? All too often self-written Wills result in partial intestacies. This means that certain assets are not correctly accounted for or dealt with in the Will, and the distribution of any unmentioned assets follows the legislation put in place for those who die without a Will. Not necessarily a bad thing, but potentially disastrous in the wrong situation.
The moral of the story is this: The cost to fix a legal issue caused by a defective holographic Will or Will-Kit will far outstrip the cost of paying a lawyer to have drafted the Will in the first place. I always finish my Wills presentations by telling my audience not to take my word for it. Ask around, talk to friends, get a second opinion from a different lawyer. The point is not that you hire me to do your Will. Rather, the point is that you don’t encumber your Estate and those you love with costly legal drama after you have passed away.
Andrew Torbiak, J.D.