In a recent decision of the Court of King's Bench of Alberta, Baldwin v Van Hout, 2024 ABKB 220 ("Baldwin"), a dispute was reconciled in relation to the validity of two holographic Wills that contained both handwritten and typed segments.
In Baldwin, Arla Baldwin (the "Deceased") passed away in January 2021 leaving behind two notebooks containing handwritten instructions regarding her estate – one written in 2016 and the other in 2020. A dispute arose amongst the beneficiaries with respect to the validity of the documents, and the Court was therefore tasked with determining whether the documents constituted valid Wills as well as the legal implications of their contents.
In doing so, the Court considered various sections of the Wills and Succession Act, SA 2010, c W-12.2 (the "Act"), including Section 13, which sets out who can make a Will in Alberta, including those who are 18 years of age or older with sufficient mental capacity in order to do so. The Court also considered Section 14 of the Act, which specifies the requirements of a valid Will, including that it must be made in writing, it must contain the signature of the testator, and it must be made in accordance with Sections 15, 16, or 17 of the Act.
Section 15 of the Act sets out that, for a Will to be a formal Will, it must be signed by the testator in the presence of two witnesses, who must then also sign the Will in each other's presence. Comparatively, Section 16 sets out that, in order for a Will to be a valid holographic Will, it must be written entirely in the testator's handwriting and may be signed by the testator without the presence or signature of a witness. Similarly, Section 17 allows military Wills to be signed without the presence or signature of a witness.
Ultimately, the Court considered the above noted sections and determined that the 2016 document satisfied the formal requirements of a valid Will and that it was a valid holographic Will. This was because it satisfied the requirements of Section 15 of the Act in that the final page was properly dated and signed by the Deceased and two witnesses, and each of the pages were initialed by the Deceased and the witnesses. Further, the cover of the 2016 document contained the phrase, "Last Will and Testament of Arla K. Baldwin", and the document itself contained detailed instructions regarding what the Deceased wished regarding her assets, thereby demonstrating a clear testamentary intent.
Comparatively, the Court held that the 2020 document did not satisfy the formal requirements of a valid Will. This was on the basis that it lacked any explicit declaration or phrasing indicating that it was a Will, it contained discrepancies in that same pages contained handwriting inconsistent with the Deceased's handwriting, some pages were signed and dated while others were note, and there was no acknowledgment of the Deceased's signature by two witnesses.
However, notwithstanding this, the Court acknowledged that certain portions of the document were handwritten and signed by the Deceased, which were valid testamentary acts, and that they contained wishes that did not conflict with those set out in the 2016 document. On that basis, the Court held that these portions constituted valid holograph Wills and that the 2016 and 2020 documents worked together to comprise the Deceased's Last Will and Testament.
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