Wills as a rule have to express the clear intentions of the testator to make a testamentary disposition and be signed. Several court decisions ( see infra) have confirmed these requirements. What happens if an individual, just prior to committing suicide, expresses in a handwritten note, found on his body, his clear wish to make a bequest but it is unsigned? Such is the question raised in the recent case of Succession de Garneau, 2020 QCCS 4295 (Canlii), a decision of Mr. Justice Parent of the Quebec Superior court rendered on December 10 2020.
The plaintiff Julie Lehoux ("Julie") made a request for the probate of an unsigned document found on the body of her common-law spouse Richard Garneau ("Garneau") who died by suicide on January 23, 2020. They had one 9 year old son Alex who was represented in court by Julie as his tutor.
Julie gave evidence surrounding the circumstances of the death of Garneau. In the night of January 22, 2020 and early morning of January 23 Garneau told Julie that he was leaving their home to do some snow removal work. His body was found in his car on January 23. The medical examiner established the cause of death as gas inhalation inside his car. On the body of Garneau there was found a bill dated January 22, 2020 for the purchase of an automobile piece. On the back of the bill was written the words
(translation): I give everything that belongs to me to my girlfriend Julie Lehoux who I adore...
There was no accompanying signature by Garneau on the bill( front or back).
Julie gave evidence that she recognized the handwriting of Garneau on the back of the bill. She also confirmed that both she and Garneau had had discussions in the previous months wherein they each wished to bequeath to each other all of their respective estates. She also confirmed that Garneau had maintained no relations with his own family.
Julie asked that the note, handwritten by Garneau on the back of the bill, be probated as a holograph will, even though it was not signed by Garneau. She also wished to be named liquidator of his estate.
Could the unsigned hand-written document, obviously expressing the testamentary wishes of Garneau, be accepted for probate as a holograph will ?
Article 726 of the Civil code of Quebec (Ccq) states:
- A holograph will shall be written entirely by the testator and signed by him, without the use of technical means. It is subject to no other formal requirement ( underlining added)
Article 714 of the Ccq states:
A holograph will or a will made in the presence of witnesses that does not fully meet the requirements of that form is valid nevertheless if it meets the essential requirements thereof and if it unquestionably and unequivocally contains the last wishes of the deceased.
The judge's analysis
The judge stated that 2 conditions are required for a holograph will: it must be written entirely by the testator and signed by the testator. According to the judge the first condition was clearly met- the document was written entirely by Garneau. But what about the missing signature ? According to the judge the more or less contemporaneous timing of the writing of the document by Garneau (which reflected his last wishes) with the subsequent death of Garneau within a few hours of his writing the document was the equivalent of his signature. According to the judge ( translation)
"the proximity in point of time between the writing of his will and his death distinguished this particular case from several earlier judgments of the Quebec Court of Appeal "
The judge referred to three decisions of the Quebec court of appeal :
Gariépy (Succession de) c.Beauchemin, 2006 QCCA 123,
Kaouk (Succession de) c. Kaouk, 2008 QCCA 192 and
Aubé (Succession d') c. St-Amand, 2010 QCCA 1031
which all held that a signature was an essential requirement to probate a holograph will but in each such case there was a substantial time delay between the signing of the document ( purporting to be a holograph will) and the death of the testator.
In the case of Aubé (Succession d') c. St-Amand the testatrix Fernande Aubé wrote some handwritten notes in the margins of pages 26-31 of a Sudoku booklet of 208 pages expressing what appeared to be her testamentary wishes to divide her estate equally among her 3 children. These notes were undated and unsigned but the evidence suggested a date around October 2007 while in a hospital. In an earlier will from 1991 she had given about 67% of her estate to her one son Dany. She died on December 20, 2007, about 2 months after the Sudoku notes were first noted. The Superior court accepted the probate of her written but unsigned Sudoku notes as her holograph will. On appeal by Dany the Court of Appeal reversed this decision and refused the probate stating that :
( translation) The absence of a signature was fatal.
In the case of Kaouk (Succession de) c. Kaouk the deceased Layla Kaouk("Layla") had a first notarial will in 1997( the "1997 will") in which she gave her residual estate ( after paying out any particular bequests) to her brother Michael Kaouk. Denise Coté started living together with Layla from 1998 till the death of Layla in 2006. In 2001 Layla signed a will before witnesses ( the "2001 will") prepared by an Ontario lawyer in which she made several particular bequests to Claudine Vivier ("Claudine") with whom she had co-owned a property and Denise Coté ("Denise"). In 2003 Layla made 2 hand-written and signed modifications to the 2001 will by adding 2 self-adhesive strips on top of the 2001 will; on these strips she wrote in her own handwriting and signed more particular bequests to both Claudine and Denise. Finally in 2004 she attempted to make a further bequest to Denise of her interest in a home she had just bought jointly with Denise. This time, instead of self-adhesive strips, she hand-wrote in the margin of the 2001 will her intended bequest of her interest in the home to Denise. However this time she did not sign this intended bequest in the margin of the 2001 will.
The Superior court accepted the probate of the 2001 will with the 2 handwritten codicils in 2003 on the self-adhesive strips but he refused the last attempted codicil in 2004 as it was unsigned although written in the hand of Layla.
By a decision of 2 to 1 the Court of Appeal confirmed the lower court decision, accepted the probate of the 2001 will and the 2 sets of 2003 codicils but refused the probate of the 2004 attempted codicil. Mr Justice Nuss stated that a signature was an essential component to a will and its absence was fatal. There was no close "material or intellectual link" between the attempted hand-written but unsigned codicil written in 2004 (on the surface of the 2001 will) and the 2001 will signed about 3 years earlier.
In the case of Gariépy (Succession de) c. Beauchemin the testator Jean-Pierre Gariépy("Gariépy") madea hand-written purported bequest on a piece of paper, (which was both undated and unsigned) of his home to his girlfriend of 15 years Danielle Beauchemin . His three children from an earlier marriage challenged the legality of this purported holograph bequest. The Superior court accepted the unsigned hand-written document as a valid holograph will as it expressed the wishes of Gariépy and it was written by him although unsigned and undated. On appeal by the three children the Court of Appeal reversed the Superior court and declared the unsigned paper purporting to be a will as not being able to be probated as a holograph will. Quoting from Mr Justice Nuss in an earlier decision :
The holographic will must be written and signed by the testator. These are the two conditions that are indispensable and essential for the document to be probated as a will
Although the facts in the current case were very particular and distinguishable due to the very short time lapse between the moment of writing the holograph will on the back of an invoice until the time of death very shortly thereafter one has to truly wonder how the Court of Appeal would deal with this divergence from their constant theme that a holograph will requires a signature to be accepted into probate. At the very least the moral should be: if you choose to write a codicil on a piece of paper, on the margin of another will, on the pages of a Sudoku booklet with self-adhesive tapes or anywhere else, be sure to do the writing in your own hand-writing and be sure to sign it and (preferably) date it. Also make sure the potential heir can get the holograph will or at least knows where it is located.
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.