If a person dies without a formal will that has been drafted typically by a lawyer and signed by two witnesses their estate will pass on intestacy. Who gets which part of the estate is set out in the Wills, Estates and Succession Act.
The deceased however may have written a less formal will which is called a holograph will. The classic example of this is the will of Cecil Harris, a Saskatchewan farmer who etched with a knife his intentions on the tractor which was laying on top of him. “In case I die in this mess I leave all to the wife” and he signed his name. The court in Saskatchewan held this constituted a valid holograph will.
In B.C. the Wills, Estates and Succession Act states the requirements for a holograph will in section 58(2) and (3):
(2) On application, the court may make an order under subsection (3) if the court determines that a record, document or writing or marking on a will or document represents
(a) the testamentary intentions of a deceased person,
(b) the intention of a deceased person to revoke, alter or revive a will or testamentary disposition of the deceased person, or
(c) the intention of a deceased person to revoke, alter or revive a testamentary disposition contained in a document other than a will.
(3) Even though the making, revocation, alteration or revival of a will does not comply with this Act, the court may, as the circumstances require, order that a record or document or writing or marking on a will or document be fully effective as though it had been made
(a) as the will or part of the will of the deceased person,
(b) as a revocation, alteration or revival of a will of the deceased person, or
(c) as the testamentary intention of the deceased person.
Regardless a court application will be required in order to probate a holograph will. This will be costly and it will take a lot of time so it is much better to ensure you have a valid will in place.
Deborah A. Todd
