/ Case Law

Case Brief - Holographic wills and incorporation by reference

In Re: Lacroix Estate, 2021 ONSC 2929, the Superior Court considered the case of a holograph will prepared by a terminally ill woman in the hospital, who was unable to see her lawyer due to COVID-19 restrictions. The court ultimately found the will invalid.

The Facts

In May 2020, Rebecca Stephanie Lacrois ("Ms. Lacroix") was in St. Catherines General Hospital with final stages of cancer. She spoke on the phone with a lawyer on May 25, 2020 about the need to make a will.

Due to COVID-19 restrictions, Ms. Lacroix's lawyer was not allowed to visit her at the hospital and execute the will with her in person. On May 26, her lawyer sent a draft will to Ms. Lacroix and told her to prepare a holographic will that incorporated the draft will by reference.

It appears that Ms. Lacroix then handwrote the following note and initialed each page of the draft will.

Tuesday May 26, 2020
I, Rebecca Stephanie Lacroix, declare that this holographic will shall constitute my last will and testament and I hereby incorporate into this my will the attached draft will which I have initialed on each page for identification purposes.

Ms. Lacroix died on June 6, 2020. Her estate trustee, Christopher Kucman ("Mr. Kucman"), now applies for a Certificate of Appointment of Estate Trustee with a Will.

The Issue

Is Ms. Lacroix's handwritten document a valid holographic will?


Holograph wills are valid in Ontario without witnesses.  They must be handwritten and signed by the testator and prepared with testamentary intent to dispose of the testator's property after death (see Succession Law Reform Act, RSO 1990, c. S. 26, ss. 6, &(1); Bennett v. Toronto General Trusts Corp., [1958] SCR 392).

Ontario law permits wills to incorporate other documents by reference. This "doctrine of incorporation" only applies when a document is being incorporated into a valid will.

In this case, the document Ms. Lacroix prepared was written in her own handwriting, signed, and prepared with clear testamentary intent.

But the court found that it was not a valid will because the document, on its own, makes no disposition for Ms. Lacroix's property. The disposition of property was detailed in the reference draft will (see Bennett v. Toronto General Trusts Corp; Re Dixon-Marsden Estate 21 E.T.R. 216, 1985 CarswellOnt 711; Facey v. Smith (1997), 17 E.T.R. (2d) 72 (Ont. Gen. Div.).

Consequently, the court did not issue the Certificate of Estate Trustee with a Will to Mr. Kucman.

Bottom Line

While it's clear what Ms. Lacroix intended, a holographic will must be a valid standalone document before it can incorporate other documents by reference.

Patrick Hartford

Patrick Hartford

Patrick is the Founder of NoticeConnect.

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