Re: Lacroix Estate: Holograph Wills and the Doctrine of Incorporation by Reference During the Time of COVID-19

  • October 13, 2021
  • Natalie Kodsi, articling student, WEL Partners

Over the last year and half, battling through a raging global pandemic, death has been on everyone’s mind. In fact, with the rise of COVID-19 came a surge of Canadians looking to draft or update their Wills.

For a Will to be validly executed, section 4(2) of the Succession Law Reform Act, R.S.O., 1990, c. S.26 (“SLRA”)[1], states the Will must be signed at its end by the testator (or some other person in the testator’s presence by the testator’s direction) in the presence of two or more attesting witnesses who will also subscribe the Will at the same time. However, COVID-19 presented a challenge in this regard – lockdowns and sickness precluded individuals from attending at lawyers’ offices to have their Will duly executed.

In response, the Ontario government passed an emergency order, O. Reg 129/20 to temporarily permit the virtual witnessing of Wills, among other things.[2] Bill 245, Accelerating Access to Justice Act, 2021, which came into effect May 20, 2021 as O.Reg 129/20 expired, permanently implemented virtual witnessing as an option available to the public moving forward.  

Still, there may be an inclination for individuals to forego the formal requirement of witnessing altogether by opting instead to create a handwritten “holograph” Will,[3] or even yet create a holograph Will that incorporates a separate document into it, as was the case in Re: Lacroix Estate, 2021 ONSC 2919.