In light of the pandemic, individuals may have seen suggestions on the internet or other media that holograph wills are a good solution.
Firstly, what is a holograph will? A holograph will is a will the individual writes by hand then signs without witnesses or any other formality.
What are the benefits of making a holograph will? The primary benefits of a holograph will are that they can be prepared quickly, without formality and at little to no cost. In light of the current pandemic, the lack of witness requirements is appealing as it supports social distancing.
What are the drawbacks of making a holograph will? Though a holograph will may be appropriate (or unavoidable) in certain circumstances, based on my litigation experience, holograph wills can often lead to complications arising from unclear terms or questions surrounding intention, capacity or influence. They often fail to include critical terms, consider relevant legislation that impacts how an estate can be divided (i.e. Matrimonial Property) or address meaningful taxation issues. When these issues arise, it is quite likely that the will is going to become the subject of time consuming and expensive litigation.
In addition, holograph wills are not recognized as legally valid in all jurisdictions. If the individual owns real property in such a jurisdiction, the wishes expressed in the holograph may not necessarily be recognized and the real property may be administered according to that jurisdiction's intestacy laws (i.e. when an individual does not have a will).
A formal will, drafted by a specialist, should address these issues and provide greater certainty that your wishes will be followed and litigation avoided. When it comes to estate planning an ounce of prevention is definitely worth a pound of cure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
