Please note that since the date of this original blog, the curative provisions of s 58 of WESA may have altered the law relating to the topic of holograph wills.
Holograph wills are ones that is entirely written and signed by the testator, but does not have the witness attestation that is required in British Columbia in order to make a will valid. ( Two witnesses and the testator sign the will, all in the presence of each other, is required in British Columbia)
Many non lawyers have heard the story of the Alberta farmer pinned under his tractor and dying, who wrote on the dust of the tractor’s fender “everything to mom”.
The holograph will/fender was not dated, but the fender was admitted into court as the last valid holograph will of the deceased, and everything went to mom..
That would not be a valid will in British Columbia for a few reasons, but most primarily, the absence of the two witnesses.
The holograph will must still have the necessary animus testandi, meaning the deliberate intention to dispose of property after death.
There cannot be any question of this testamentary intention as there is no requirement that the holograph will identify itself as a will.
There are examples where letters have been held sufficient to be admitted to probate as holograph wills.
The decision Re Neilson Estate (1989) 96 NBR (2d) 2 involved a deceased who had delivered three pages of handwritten instructions to her lawyer, and then signed the last page with her first name, and put the pages in an envelope with her full name on the outside.
The court admitted these instructions as a valid holograph will .
disinherited.com is strongly supportive of the existing law in British Columbia requiring two witnesses to all be present, and both watch the testator sign his or her name, and then the testator watching the witnesses attest their names, all at the same time.
There is already far too much abuse in the wills and estates arena, and the absence of two witnesses can only lead to further wills and financial abuse, particularly of the elderly.