All About Estates

When Is A Signature Not A Signature?

Under the Succession Law Reform Act (SLRA), a will or codicil must be “signed” to be valid. The case of BMO Trust Company v. Cosgrove, 2021 ONSC 5681 considered what handwritten form of a person’s name constituted a signature.

Nola Louise Bogie hired a lawyer to prepare her will. However, by 2017, Ms. Bogie’s lawyer had been suspended by the Law Society of Upper Canada (as it was then known). Accordingly (one can assume), on August 21, 2017 she created a handwritten codicil (accompanied by a typed transcription). The codicil made extensive changes to her will. It concluded as follows:

“End of page 3 of the Codicil for the Last Will and Testament of me, Nola Louise Bogie

Signed, Published and Declared by the said Testatrix, Nola Louise Bogie, at the City of Toronto, in the Municipality of Toronto, in the Province of Ontario,

As and for her Codicil as an attachment amending her Last Will and Testament.

Dated on: [left blank]”

Shortly thereafter, on September 12, 2017, Ms. Bogie contacted to Law Society (which had her lawyer’s files) and asked for a copy of her will. She noted that she had “hand written a Codicil (not yet signed).” She died almost three years later, on August 12, 2020. The estate trustee’s agent, BMO Trust, brought an application for directions as to whether the handwritten codicil was valid. The application was heard by Justice Dietrich.

Under the SLRA, a holograph/handwritten codicil is valid if it is made “wholly by his or her own handwriting and signature” and is not invalid if “the signature is placed among the words of a testimonium clause or of a clause of attestation.” Here, Ms. Bogie wrote her full name twice, in handwriting, the attestation clause. Additionally, the record demonstrated, that Ms. Bogie’s signature was indistinguishable from how she handwrote her name.

Justice Dietrich held: “What distinguishes a “signature” from writing out one’s name in long hand, for the purposes of this analysis, is that, it must be apparent that what is alleged to be the act of signature was specifically intended by the testator to give legal effect to the document.” Here, the blank space next to the “Dated on:” provision indicated that Ms. Bogie intended to sign and date the codicil. Subsequent to her writing her name twice in the attestation clause, she advised the Law Society that she had “hand written a Codicil (not yet signed)” – indicating that she did not believe that her handwritten name was her signature.

Accordingly, Justice Dietrich found the codicil to be invalid and held it should not be admitted to probate. In her view, it was reasonable for BMO Trust to have brought the application and approved its fees (subject to a passing of accounts, if any).

This case shows some of the pitfalls that can arise when a person drafts their own testamentary documents. Ms. Bogie had clearly turned her mind to setting out her wishes in the codicil but, for whatever reason, never signed it.

About Jacob Kaufman
Jacob Kaufman is a lawyer with de VRIES LITIGATION LLP. Jacob assists clients with will challenges, dependant support claims, guardianship applications, power of attorney disputes and other estate and trust litigation matters. He has appeared before various levels of court, including the Superior Court of Justice and the Court of Appeal for Ontario. Jacob obtained his law degree from the University of Western Ontario (with distinction) after completing an Honours Bachelor of Arts degree from Queen’s University in history (with distinction). He has written articles for the International Law Office, Legal Alert and the OBA’s Deadbeat. Email:


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