In Ontario, a will, “your last will and testament,” must be in writing and signed by the testator (the person making the will). The testator’s signature must be placed at the end of the will and the testator’s act of signing must be done in the presence of two witnesses who, in turn, must also sign the will in the presence of the testator and in the presence of each other. The requirement that the will be in writing simply means that it is typed-up and then signed and witnessed. Since 1978, it has been possible to make a valid holograph will in Ontario. A holograph will is one that is wholly in the testator’s handwriting, that is, in long hand not typed, and signed by the testator.
Issues have arisen in the courts when there is a formal, typewritten will, but the testator makes handwritten changes to the will. A recent Ontario case addressed this issue. The estate involved a large sum of money. The handwritten changes deleted certain beneficiaries and add new ones at the stroke of a pen. The court described the hand written changes: “The alterations were made in handwriting using at least three different types of ink. There was no consistency in the manner in which the changes had been made. Some words were crossed out, other words added above and beside various portions of the will. Some of these added words and phrases were initialled, some portions were crossed out and not initialled, some portions were crossed out with words added above or beside the crossed out portions, wording was added without being initialled, the word “yes” was written beside certain crossed out portions, not initialled, newly inserted wording that appeared to refer to different bequests, uninitialled and an X placed beside a bequest with writing such as “No”, “Yes”, “O.K.” with no initials. Different coloured ink was used suggesting that the changes had been made at different times.”
Did the handwritten changes to the typed will change the content of the will? No, they did not. The legislation governing wills renders invalid handwritten alterations made after the will is executed, unless the alterations are made in accordance with the formal requirements which govern the validity of a will. An alteration made to a formal will, once it has been executed, is valid only if the alteration is signed by the testator and attested and signed by two witnesses.