Canada: Just Because You Can, It Doesn’t Mean You Should

Last Updated: May 20 2014
Article by Kate M. Faught

It is a conversation that most wills and estates lawyers have had more times than they wish to count. It happens at cocktail parties, at the hair salon, and family reunions. Strangers, clients and family members want to know – do I really need a lawyer to do my will? It's a valid question. After all, even lawyers can think of more fun ways to spend their hard earned dollars than on legal fees. But as any lawyer in this area will say, just because you can write your own will, doesn't mean that you should.

The recent case of Christensen v. Bootsman, 2014 ABQB 94, is instructive not so much in the substantive elements of law that are discussed, but rather as an example of how easily a relatively straightforward holographic will can become the root of costly litigation.

The testator, Joan Christiansen, had a formal will dated August 31, 1976 ("the formal will"), as well as a holographic will dated June 28, 2010. The testator had named her daughter, Yvonne, as the executor in the formal will, and then named her daughter Sandra as the executor in her holographic will. The testator passed away on October 30, 2010 at 80 years old and a trial ensued regarding the validity of the holographic will, which was propounded by Sandra and contested by the deceased's other three children.

Sandra had been her mother's caregiver for the last 10 years of Joan's life. There was no evidence to refute that she committed a substantial amount of time to addressing Joan's needs, even after Joan moved into assisted living. It was clear that she was financially supported to some extent by her mother, which had never been concealed from the other family members, even before Joan died. Despite the assistance that Sandra provided to her mother, including managing her care and accommodation, transporting her to medical appointments, taking her out for meals and walks and running errands for her, Joan always did her own banking.

The opponents of the holographic will alleged that the deceased was subject to undue influence by Sandra. The facts that came out in the trial, however, do not paint an extraordinary picture of incapacity or duress. It appears from Justice Gill's decision that Sandra was a diligent and hardworking caregiver for her mother, rather than a "gold digging" schemer who had coerced her mother into leaving her a larger share than her siblings received.

Indeed, the Court found that none of the opponents of the will could provide any facts to support their allegation that Sandra exerted any undue influence upon Joan, let alone the level of coercion that would be required in order to succeed in denying the validity of the will.

The concerns that gave rise to the children's opposition to the will were entirely circumstantial, and were certainly not sufficient to cause any concern to the trial judge. Some of those concerns included the following:

  • Why did Joan not go to a lawyer's office to make a new will, as she had in 1974?
  • Joan did not speak in the same manner, or use the same type of language as was used in the holographic will
  • The rest of the family (other than Sandra) did not know about the holographic will until after Joan's death
  • If Joan wrote the holographic will, why did she sign another will (improperly) in front of her doctor 17 days later?

The opponents of the holographic will also alleged that the deceased lacked capacity at the time that it was signed. This appears to have been dealt with in a fairly summary manner by the trial judge, who again found that there was no evidence to suggest that Joan lacked testamentary capacity. The Court again pointed out that not even the parties who opposed the holographic will could point to any evidence that she lacked the capacity to manage her own financial decisions while she was living, nor that she lacked capacity to create a will at the relevant time.

Given what appears to be extremely limited evidence propounded by the opponents to the holographic will, it appears, at least on the face of the judgment, that this action should never have required a trial to determine the issues of capacity and undue influence. It is trite to state that estate litigation is often driven by emotion and longstanding, complex family relationships, and perhaps that is the case here. However, the four day trial, and then preparation of written submissions, likely put a fairly sizeable dent in the value of the estate.

What lessons then are to be gleaned from this case? No new principles of law were enunciated, and the facts were certainly not extraordinary or especially scintillating. This case, instead, should operate as a warning to lay people who do not recognize the value of having a formal will prepared by a lawyer as a neutral third party.

With the benefit of 20/20 hindsight, one wonders whether the opponents of the will would have pursued their concerns all the way through a trial if the testator had retained a lawyer to prepare a formal will, even if it had all of the exact same terms as her holographic will contained. The fact that the will would have been signed before two witnesses, and could have been accompanied by assurances from the lawyer that capacity had been addressed and instructions had been sought without Sandra's involvement, likely would have been enough to convince the opponents of the will that it was valid.

Joan's investment of perhaps $1,000 to prepare a new formal will could very easily have avoided the expenses incurred by the two parties to take the matter through four days of trial. That $1,000 was likely spent within the first meeting that each party had with their respective counsel, and was spent many more times over as the matter progressed through years of litigation. Although it can be difficult for lawyers to explain the value that they add to the estate planning process, and it is certainly true that no will is immune to even baseless claims of invalidity, the case of Christensen v. Bootsman should serve as a helpful example of the risks of relying on a holograph will. Even when it is executed properly, and there are very limited grounds on which to contest its validity, it is not safe from the perils and expense of litigation pursued by suspicious parties.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Kate M. Faught
Events from this Firm
19 Dec 2017, Webinar, Calgary, Canada

McLennan Ross previously conducted a webinar on June 6, 2017 about the passage of Bill 17, during which we reviewed the changes to the Employment Standards Code and the Labour Relations Code. During that webinar, we identified a number of issues which would depend upon the language of the Regulations, which had not yet been developed.

21 Nov 2018, Webinar, Calgary, Canada

Changes to the Employment Standards Code this year increased the number of unpaid leaves to which employees are entitled for the purpose of allowing them to deal with family related issues.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions