At LegalWills.ca we allow you to prepare your own Will. This occasionally creates confusion because people think that the end result is a handwritten Will. This further confuses people because they have read that some provinces (notably BC) do not accept a holographic Will as a legal document. But there are a number of errors with this sequence of statements. With this article we will explain exactly what a holographic Will is, how it differs from a handwritten Will, and why preparing your Will yourself doesn’t necessarily result in either a handwritten or a holographic Will.
What are the legal requirements to prepare a Will?
The legal requirements for a Will are actually not very stringent. The Will must be written on a piece of paper, and signed. Most Wills must also have the signature of two witnesses (more about that later). British Columbia is currently the only province that allows a Will to be stored electronically – this means that it doesn’t have to be on a piece of paper. Every other province and territory requires the document to exist physically.
Of course, there is nothing in the law that says that is must be on paper. Famously, a Saskatchewan farmer scratched his Will on the fender of his tractor, and this was accepted as a legal Will. However, this does make the submission to probate more challenging.
So although your Will can be written on the back of a napkin, this wouldn’t be a very good Will. A Last Will and Testament written using the service at LegalWills.ca is usually about 5 to 6 pages long and includes a number of very important clauses including Trusts for minor beneficiaries, powers to the Executor, alternate distribution plans, and many things that you may not consider if you were preparing a Will starting with a blank sheet of paper.
Can you write your own Will?
It is important to note that your Will does not have to be written by a lawyer or notary to be a valid Last Will and Testament. Everybody has a right to prepare a Will, and not everybody has the financial means or geographic access to a lawyer.
You can absolutely prepare your own Will. You can do this by starting with a blank piece of paper, using a blank form Will kit, or using online Will writing software. If you sign the document in the presence of two witnesses, it becomes a legal Last Will and Testament in all Provinces and Territories in Canada.
What makes a holographic Will special?
There is a particular clause in many provincial Will laws that allow you to prepare a Will when you are in desperate circumstances.
There may be certain situations where you want to prepare your Will, and you are unable to find two adults to serve as witnesses. This is where the holographic Will comes into play.
A holographic Will is a document written ENTIRELY in your own handwriting. There are no typed elements to the Will. If the document is written entirely in your own handwriting, then SOME Provinces accept the document as a legal Last Will and Testament, even if it is signed, but not witnessed.
Let me restate this point to be clear:
A document written ENTIRELY in your own handwriting, is a holographic Will. Some provinces accept this as a legal Will even if there are no witness signatures.
Is a holographic Will accepted everywhere?
No. The provinces that consider a holographic Will to be legal are Alberta, Ontario, Manitoba, Quebec, New Brunswick, Newfoundland,and Saskatchewan. Holographic Wills are not legally accepted in British Columbia or PEI.
Be very careful when searching for information on the internet, because even law firms get confused with this.
We must be very clear on this. British Columbia and PEI do not accept a handwritten Will that is not witnessed (a holographic Will). However, all provinces and territories accept handwritten Wills that are signed in the presence of two witnesses.
Is a Will kit a holographic Will?
A Will kit is not a holographic Will. Generally, Will kits are a template where you fill in the blanks. The sentences and clauses between the blanks are usually typed. So even if you use a very minimalist template, if there is any typed component to the document, then it is not a holographic Will. This means that any blank-form Will kit MUST be signed in the presence of two witnesses to make it a legal document.
The example here shows that even when a template encourages you to handwrite large amounts of information into the blank space, there are still typed sentences, which means that two witnesses must watch you sign the document, and then sign the document in each other’s presence.
Does LegalWills.ca allow you to prepare a holographic Will?
At LegalWills.ca we allow you to prepare your own Will. The final document will have very little handwriting on any of the pages. Only the last page will have your signature, the date, and the number of pages handwritten. It will also have the names and addresses of your witnesses handwritten. Every other piece of text in your Will created at LegalWills.ca will be typed (technically, printed on a printer).
By now, you probably understand that this is not a holographic Will. It is a Will that has typed elements to it, so in order to make it a legal Last Will and Testament, it must be signed in the presence of two witnesses. Once it is signed, and two witnesses have signed it, then it is a fully legal Will accepted in all provinces and territories.
When should I use a holographic Will?
Earlier on in this article we referenced the Last Will and Testament written on the back of a McDonald’s napkin. It was accepted as a legal document by the courts. But that wasn’t an easy process for the family. The document had to be submitted to the courts, and a judge had to make a ruling. It is possible that the ruling may be appealed. I can assure you that when this napkin was presented to the probate courts, it would not have been readily accepted. Also as we previously noted, although legal, the document was an extremely poorly drafted Will.
The only time that you should ever contemplate preparing a holographic Will is if you are absolutely desperate. Such as you have unfortunately procrastinated on preparing your Will throughout your lifetime, and you have now found yourself in a life-or-death situation, and you have no access to any witnesses. With luck, you have a notebook and pen, and hopefully your assets are in a Canadian jurisdiction that accepts holographic Wills. In this case a holographic Will may be your best option.
The best way to prepare your Will
There are much better approaches to preparing your Will than a holographic Will. An increasing number of people are turning to online Will writing services like the one offered at LegalWills.ca
The whole process takes about 20 minutes, and costs $39.95. Having been in business for over 20 years, and after creating over half a million documents, we know our Wills work.
We have tried to remove the barriers to preparing a Will. You do not have to complete the service in one sitting, but we do encourage you to get started. Just go to www.legalwills.ca and click on “Start Your Will’.