It’s generally best practice to write a will with the help of a lawyer to ensure the document is legally valid and properly accounts for the will-maker’s final wishes. However, people sometimes choose to write down their last wishes without consulting a lawyer. This often happens in moments of urgency, such as during a sudden illness or unexpected life event. It can also happen in cases where someone simply believes that having a handwritten document is enough to protect their estate.
Handwritten, unwitnessed wills are commonly referred to as holographic wills. While these types of wills are recognized in some parts of Canada, they are not inherently legal in British Columbia. Under the Wills, Estates and Succession Act (WESA), holographic wills are much more likely to be challenged, and issues surrounding authenticity, clarity, and compliance with legal requirements often become central in estate litigation cases.
What Is a Holographic Will?
A holographic will is entirely handwritten by the testator, or will-maker, and is unwitnessed. Holographic wills are often created when someone experiences a sudden illness, faces an emergency, or cannot access a lawyer but still wants to document their final wishes. In these moments, the will-maker may attempt to protect their assets or provide instructions for how their estate should be distributed.
These documents are usually written in the testator’s own handwriting and may be signed and dated, but they are often informal. They may lack clear legal language, structured clauses, or even a full accounting of assets and beneficiaries. While the intent is usually sincere, the informality can create legal uncertainty after the person’s death.
Is a Handwritten Will Legal?
In several other Canadian provinces, holographic wills are automatically recognized as legally valid. But under WESA in BC, a will must be signed in the presence of two witnesses, both of whom must be at least 19 years old.
Because holographic wills are typically unwitnessed, they are not automatically considered valid in BC. That said, this does not mean a handwritten will is always invalid. BC courts have discretion under WESA to “cure” deficiencies in a will. This means that even if a document does not meet the formal legal requirements, a court may still declare it valid if it is satisfied that:
- The document was intended to be the testator’s will
- The testator’s wishes can be established with sufficient and reliable evidence
Courts may consider factors such as the testator’s handwriting, the language used in the document, surrounding circumstances, and evidence from witnesses who can confirm the testator’s intentions. This discretion has limits. Courts are generally unable to cure a will in situations where:
- The testator’s intent is unclear or contradictory
- There are allegations of fraud or undue influence
- There are concerns about the testator’s mental capacity
While handwritten wills are one type of informal document, it’s important to note that section 58 of WESA gives BC courts the ability to validate any record that reflects a person’s final intentions.
Common Issues with Handwritten or Holographic Wills
Holographic wills are more likely to give rise to disputes because they often lack the clarity and formal safeguards of a properly executed will. Even when the testator’s intentions seem clear at first glance, informal documents can create uncertainty that leads to estate litigation.
Common issues include:
- Ambiguous or informal language: Vague wording, incomplete instructions, or casual phrasing can make it unclear how assets are meant to be distributed or who is intended to benefit from the estate.
- Increased risk of challenges by heirs: Handwritten wills are more frequently contested, particularly when they differ from earlier estate plans. Challenges may involve allegations of undue influence, fraud, or lack of testamentary capacity.
- Procedural defects: Missing signatures, the absence of witnesses, or an undated document can complicate probate and raise questions about whether the will meets the legal requirements under BC law.
- Probate and administrative complications: Courts may need to examine the document closely to determine its authenticity and whether it reflects the testator’s true intentions, which can increase both the time and cost involved in administering the estate.
When to Contact a Lawyer
Legal guidance is often necessary when a holographic or handwritten will is involved. You may need legal assistance if a will is contested or potentially invalid, there is ambiguity in the wording of the will, or there are conflicting claims among beneficiaries or family members.
Stephens & Holman focuses on estate litigation cases, helping clients contest wills, resolve disputes involving handwritten or holographic wills, and navigate the court process when a will’s validity is in question. Contact one of our offices today to learn more or to schedule an appointment.