“Everything to Wife”

“Do I really need a Will? Can’t I just leave everything to my partner or kids with a quick note and let them sort it out?”

Yes, you can handwrite a “Holographic Will.” You can even scratch your Will on a piece of metal and hope someone sees it, as a desperate Saskatchewan farmer did when he had a tractor accident (see story below). That said, leaving the writing of your Will to the last second is a risky option though. As is drafting your own Will. 

Holographic wills: Cecil George Harris of Saskatchewan

Consider the case of Cecil George Harris, a 56 year old Saskatchewan man that, while working his field, managed to accidentally trap himself under his tractor. He was pinned under it, the tractor both wrecking his leg but keeping pressure on the wound, waiting alone for 10 hours before his wife came looking for him because he missed dinner. During his 10 hours under his tractor, he scratched his will into the paint using his pocket knife: “In case I die in this mess I leave all to the wife” and his name scratched alongside it.

The neighbors were rallied, a thunderstorm struck, the tractor was moved, and Mr. Harris was brought to the hospital. He was lucid, but in shock, experiencing extreme blood loss. Sadly, he succumbed to his injuries, but he held on long enough to say goodbye to his loved ones and died the following afternoon.

The side-panel of the tractor was considered a valid holographic will by the courts, and the whole of Mr. Harris’s estate was passed to his wife without issue.

In this case, Mr. Harris’s final wishes were able to be carried out; however, there are many factors that could have easily prevented this outcome, and left his wife with a lengthy legal issue on top of the grief of losing her husband.

If Mr. Harris had not brought his pocket knife with him, or another means to scrape letters into the paint of the tractor, he may not have been able to write out the will in a way that survived the thunderstorm and the efforts to pull him from the tractor.

Had he not thought to sign his name (he was in shock and had lost a lot of blood), then the will may have been deemed invalid, or his wife would have had to find a way to prove that Mr. Harris wrote it.

While it is presumed that Mr. Harris wrote the will intentionally and not under threat from another person, the fact that Mr. Harris remained lucid during his rescue and his remaining time in the hospital, reinforced that he maintained mental capacity. But had he been acting a little odd the day or morning before the incident, or if someone had any convincing reason to question it, proving the capacity of the deceased man would have been challenging and time consuming.

Lastly, had the tractor not stopped in the right place to provide pressure to slow the bleeding, Mr. Harris would have had mere moments before blacking out from his blood pressure dropping, and he would have died within minutes. He would have had no time to write the will, leaving his loved ones with questions and a legal mess to sort out.

Dying without a will (called “Intestacy”) can lengthen the time it takes to manage the deceased’s estate. An estate trustee will have to be appointed according to the rules of the Succession Law Reform Act (SLRA); this person may or may not be the deceased’s preference for the management of their estate. The SLRA also outlines the legal principles of who gets what. And again, the statutory rules  may not match the deceased’s intentions for their estate. The antique guitar may never be given to the favourite nephew. The family cottage may be sold, rather than shared for years to come. If you have specific wishes for how things are done and who gets what after you die, your best bet is to note all your assets, debts, and special gifts (including monetary gifts) in a will drawn up by a trusted lawyer, and personal instructions left with the will such as an outline of a funeral service.

 Scribbling down a holographic will on a piece of paper, or scratching it into the side of a tractor in a final desperate effort, is not the most effective way to convey your last wishes to your loved ones. It is not a reliable method of ensuring that those last wishes are carried out as you might have intended. Mr. Harris had a very simple wish - to leave everything to his wife. Sometimes wills are that simple.  But when they are not, it is important to have a formal, prepared, and notarized will in place for peace of mind.

Thank you to Merle Massie at the CBC for her well-written article on the Cecil George Harris incident. (Linked Here). 

Legal Analysis and Commentary

So, what did the court look at when determining whether the Holographic Will of Mr. Harris was legitimate? 

1. A document detailing what the author’s (the “testator”) wishes are regarding their belongings, money, and dependents after their death,

2. It must be entirely handwritten by the author,

3. It has to include the author’s signature,

4. The author must have had the “testamentary capacity” to write the will, and

5. They must be expressing the intent to distribute (some or all of) their assets to beneficiaries.

However, even if you had everything on the list, there are still challenges. First, a Holographic Will does not need to have been witnessed in Ontario, but if anyone can cast doubt as to the authenticity of the Will, it will have to be proven that the Will was authentic. This can be very challenging when the author is deceased, the Will is very bare bones or was written in haste. In the Mr. Harris’s matter, affidavits were gathered from most of the people involved in Mr. Harris’s rescue, and samples of his handwriting were gathered to compare against the Will on the side of the tractor. The pocket knife was examined to make sure that it was the tools that scratched the message into the tractor, and an affidavit sworn that it was found in Mr. Harris’s pocket (W Elliott et al, Case and Comment, 1948 26-8 Canadian Bar Review 1243, 1948 CanLIIDocs 35, <https://canlii.ca/t/t4n6>, retrieved on 2025-02-13).

The second problem with a holographic will is that, by the time you decide you need one, you may not be able to make one. You may not realize your home has a gas leak, for instance, and your bed or desk is about to be your headstone. 

The third problem is that the holographic Will may not even be found in time to be useful! Mr. Harris was trapped under the tractor on June 8th, and died within 48 hours. His Will was found scratched on the tractor on June 10th when his neighbours were spreading grasshopper poison, and needed to use the tractor, and happened to notice the scratches (W Elliott et al, Case and Comment, 1948 26-8 Canadian Bar Review 1242, 1948 CanLIIDocs 35, <https://canlii.ca/t/t4n6>, retrieved on 2025-02-13).

Another neighbour found the knife in Mr. Harris’s clothing a few days after Mr. Harris’s death, and noticed that point looked to have been used on a hard, metallic surface ( W Elliott et al, Case and Comment, 1948 26-8 Canadian Bar Review 1243, 1948 CanLIIDocs 35, <https://canlii.ca/t/t4n6>, retrieved on 2025-02-13).

Had the field not needed to be tended to, the Will may have been painted over in preparation for it to be sold for the estate sale, or caked in mud and scratched into illegibility during work. Perhaps a tractor is not the best place to write your last wishes. Pre-prepared, Formal Wills are kept in fireproof safes by either you or your lawyer, readily accessible for when they are needed, rather than left in a field, needing to be found by helpful neighbours.

Fourth, the term “testamentary capacity” (point 4 above) can be confusing, and will be the topic of a future post. For now, let’s look at how the Court defined this term in a 2011 case from Ontario (Laframboise v Laframboise, 2011 ONSC 7673, para 17.):

The testamentary capacity required to execute a valid will requires that the testator: (1) understand the nature and effect of a will; (2) recollect the nature and extent of his property; (3) understand the extent of what he is giving under the will; (4) remember the people he might be expected to benefit under the will; and (5) where applicable, understand the nature of the claims that may be made by persons he is excluding under the will.

Determining whether the testator actually met the definition of “testamentary capacity” could be difficult, as had to be proved in Laframboise case. And “capacity” is a separate legal issue, which can also impact your ability to write a will, and is worthy of its own article because it is… messy.

Conclusion

Although holographic wills are permitted in Ontario, relying on one to ensure your assets are distributed to the right people, is not the wisest choice. Even using an online kit to write your Will can be confusing and result in legal battles if certain legal steps are missing or done incorrectly.  Life insurance companies, financial institutions, and governments have certain rules that must be followed to ensure your assets are delivered to your beneficiaries. If your Will is missing key steps, there could be long delays and headaches for your executor, and large bills from your solicitor.

Drafting a Formal Will seems intimidating and time consuming - which is why many people put it off! At House and Home LLP, our goal is to help you create a Will that reflects your values and clearly lays out your wishes. We will advise you on methods to reduce estate tax, options for certain pension instruments to reduce or defer taxes. We remind you to create important lists, separate from your Will, but essential for a smooth transition of assets: bank accounts, passwords, social media accounts, location of assets, preservation of family history, valuations of antiques, documents related to the family home or cottage, and so on.

Give us a call today.  Or send us an email and let’s get the ball rolling for you.

And thank you for reading! We are happy to work with you to create a Will that meets your needs. 

Samuel Baxter