Can I write my Will on the fender of my tractor by Jesse A Kasprow
“In case I die in this mess I leave all to the wife. Cecil Geo Harris”
In Saskatchewan in 1948, Cecil George Harris took his pocket knife and etched these sixteen words into the fender of his tractor after he inadvertently became trapped by it. After he passed away, the fender was brought into Court and was probated as Mr. Harris’ Last Will and Testament.
The fender now sits on display at the College of Law of the University of Saskatchewan and is the most famous Canadian example of what is known as a holographic Will. A holographic Will is a Will written entirely in the Will-maker’s own handwriting. Holographic Wills do not need to be witnessed and only need to be signed by the Will-maker.
Unlike some other provinces, British Columbia does not recognize holographic Wills. In order for a Will to be valid in British Columbia, it must be signed by the Will-maker as well as two witnesses. Furthermore, the will-maker must either sign the Will in the presence of both witnesses or if signed beforehand, attest to his or her signature in the presence of both witnesses.
Prior to the new Wills, Estates and Succession Act (“WESA”) coming into force on March 31, 2014, there was no exceptions to the formal requirements of a Will. BC was a “strict compliance” jurisdiction and even the smallest mistake would result in the Will being void and the Will-maker’s testamentary intentions not being recognized. Although holographic Wills are still not explicitly recognized, the new legislation now includes a curative provision, under s.58, which allows the courts to recognize documents even if they do not meet the formal requirements.
In the recent BC Court of Appeal case of Re Hadley Estate, Justice Dickson noted the change to the law in BC and explained the significance of section 58:
On March 31, 2014, the Wills, Estates and Succession Act, S.B.C. 2009, c. 13 came into force in British Columbia. Known as the WESA, it represents a significant reform of this province’s wills and estate administration law. One of its most far-reaching provisions is s. 58, which confers a broad discretion on the court to relieve against the consequences of non-compliance with testamentary formalities. The new curative power is a marked departure from the traditional principles of formalism that previously governed the creation, alteration and revocation of wills in British Columbia.
While some people may be tempted to forgo the costs of seeking a lawyer to help them draft a formal Will, thinking they can just write their wishes on their tractor fender if need be, the case of Re Hadley Estate demonstrates the risk of doing so. In this case, the 93-year-old Ms. Hadley handwrote a Will in her journal after a health scare in 2014. Ms. Hadley titled the entry “This is my last Will” and signed the entry at the bottom. Her signature, however, was never witnessed. Ms. Hadley did not have any close family and wanted to leave her estate to three beneficiaries who were friends of hers and had helped her with volunteer activities in her old age. Two of these three beneficiaries sought to have this 2014 Will recognized under s.58.
Under s.58, the Court can only recognize a non-compliant document if they are convinced that it represents the person’s “deliberate and final” testamentary intention. There was no doubt that Ms. Hadley wrote the journal entry, which was conceded by all parties. However, and despite strong evidence to the contrary, the Trial judge was unable to say that Ms. Hadley intended her journal to be her Will and instead considered the journal as “notes only to herself”. The Court of Appeal upheld the trial judge’s decision and instead of passing to her close friends, her estate was governed by a previous Will she wrote in 2008 which no longer represented her wishes.
While there is now a possibility that testamentary wishes etched into the fender of a tractor will constitute a Will, the best way to ensure that your wishes are followed upon your death is to have a proper Will prepared which meets the formal requirements under WESA. An application to save a Will under s. 58 requires a trial in which the judge will assess external evidence to try to determine your testamentary intentions. A trial will delay the administration of your estate and can significantly deplete your assets as the legal costs of all interested parties involved in the litigation are generally paid out of the funds of the Estate. Seeking the expertise of a lawyer ensures that you will meet the requirements of the legislation and avoid the unnecessary and significant costs of litigation. Furthermore, a lawyer can help you minimize taxes and fees and ensure that you are leaving as many assets to your loved ones as possible. Don’t be like Ms. Hadley and leave what happens to your property up to chance.