In BMO Trust Company v. Cosgrove, 2021 ONSC 5681, the court considered the validity of a holographic codicil.
Nola died on August 12, 2020. She had executed a will in 2004, and later a holographic codicil that made many substantial changes to her estate plan. The case turned on whether this holographic codicil was a valid legal document.
The issue facing the court was that while Nola had prepared the holographic codicil by hand, she did not sign it. She did, however, write her name in cursive twice on the document in the attestation clause. And there was evidence before the court that Nola's signature was identical to how she handwrote her name in cursive.
Was Nola's handwritten name in the attestation clause a valid signature as required by section 6 of the Succession Law Reform Act? What's the difference between signing your name and merely writing it out in cursive?
The court found that the handwritten name in the attestation clause was not a valid signature and so the holographic will was invalid. To sign something means more than writing a name, it requires an intent to give legal effect (see Re Oliver Estate, 1993 CanLII 8426; Papageorgiou v. Wallstaff Estate, 2008 CanLII 32305 (Ont. S.C.)).
In the case at hand, there was evidence that Nola had not considered herself to have signed the document, having made comments to others that she had not signed it yet. The fact that she happened to handwrite her name in the attestation clause identically to how she signed her name on legal documents does not create a signature in this case.