In a recent case, Gibbon Estate v. Sleeping Children Around the World, 2010 ONSC 6355, the Court was tasked with determining which of three testamentary documents constituted the deceased’s final Will. The testator left behind:
a) A handwritten will executed in 1989 and attested by two witnesses (the “1989 Will”). The deceased made numerous handwritten notes on this Will, some of which post-dated the 1994 Will;
b) A typewritten will drafted by a lawyer, executed in 1994 (the “1994 Will”), which contained handwritten notes signed and dated by the testator; and
c) A handwritten note dated June 14, 2007 that was found among the deceased’s papers following her death (“2007 Note”). The 2007 Note began with a heading “To be added to Will”.
The Court first considered whether the handwritten notes on the 1989 Will were a valid holographic will, which would revive the 1989 Will under Section 19(1)(b) of the Succession Law Reform Act. As the testator had not signed any of the changes, the Court held that this was not a valid holographic codicil.
Next, the Court considered whether the 2007 Note could be accepted as a will. In determining that the 2007 Note was not intended to dispose of the testator’s property, the Court looked at the deceased’s testamentary history. She had properly executed two previous wills, and was familiar with the requirements of a formal will. It was her practice to make notations of changes that were subsequently put into formal wills, and where she chose in the past to make an actual change, she usually made the changes by way of signed, handwritten markups to the actual will. The Court found that, looking at her past practice, if the deceased intended to effect changes, she would have done so on the actual Will document, or by preparing a new will or formal codicil.
The mark-ups to the 1994 Will were in the deceased’s handwriting. She had added a note beside the initial charitable bequest of residue that read “half to below, half to Sleeping Children Around the World.” The notation was entirely in her handwriting, and was signed by her, and the Court found it therefore qualified as a codicil. The evidence showed that the deceased also had made a practice of supporting Sleeping Children Around the World, it all “made sense”, and “reflected the intention of the testatrix”.
Lesson Learned: Testamentary dispositions can be typed, handwritten or a combination if properly signed, and in a case like this one, the Court can use extrinsic evidence of intentions to take it beyond the mere formalities.
Until next time,