January 20, 2022

In Re Lacroix Estate, 2021 ONSC 2919, the Ontario Superior Court of Justice considered whether a testator’s handwritten note could incorporate by reference the testator’s unsigned but initialed typewritten Will.


On May 19, 2020, during the height of the COVID-19 lockdown, Rebecca Stephanie Lacroix contacted a solicitor, Margaret Opatovsky. Ms. Lacroix advised that she was in the St. Catharines General Hospital in the final stages of cancer. On May 25, 2020, Ms. Opatovsky spoke with Ms. Lacroix, and received instructions to prepare a Will that would ensure that her youngest child was provided for as Ms. Lacroix was in the process of a divorce.

The hospital denied Ms. Opatovsky’s request to attend the hospital with her assistant to have the Will executed, due to COVID-19 restrictions. Ms. Opatovsky delivered the Will to the hospital on May 26, 2020, and instructed Ms. Lacroix to create a holographic Will which incorporated the draft Will she had prepared by reference. The handwritten note stated as follows:

“I, Rebecca Stephanie Lacroix, declare that this holographic Will shall constitute my last will and testament and I hereby incorporate into this Will the attached draft Will, that I have initialed on each page for identification purposes.”

Attached to that handwritten note was a draft Will, initialed on each page, which had been drafted by Ms. Opatovsky.

Ms. Lacroix died on June 6, 2021. The estate trustee named in the Will applied for a certificate of appointment of estate trustee.

The Application

The estate trustee’s application was denied. The court considered section 6 of the Succession Law Reform Act (“SLRA”) which provides that a testator can make a Will wholly in her handwriting. Section 7 of the SLRA provides guidance regarding the position of the testator’s signature on the Will. In addition, a holographic document must show testamentary intent regarding the testator’s property. Moreover, in the present case, there was no controversy that the handwritten document at issue was in Ms. Lacroix’s handwriting, as were the initials on the Will.

The court then considered the doctrine of incorporation by reference, which allows a document that is separate and apart from a Will to be considered part of the Will, for which three criteria must be satisfied by the person seeking the incorporation: (a) the document must be in existence at the time the Will is made; (b) the document to be incorporated must be described in the Will as being in existence at the time of the making of the Will; and (c) the document to be incorporated must be sufficiently described in the Will so that it is clear that the document submitted to probate is the same document referred to in the Will.

The handwritten document satisfied section 6 of the SLRA as it was in Ms. Lacroix’s handwriting, and the signature immediately followed the handwriting which conformed with section 7 of the SLRA. The handwritten document also indicated clear testamentary intent. However, the holographic document did not stand alone as a valid testamentary document, as it did not independently make any disposition of property. Moreover, a holograph Will cannot incorporate by reference a typewritten document, and the holograph Will must be wholly in the deceased’s handwriting. As such, the handwritten note and attached Will could be admitted to probate.

Take Away 

This case stands in contrast to a recent British Columbia Supreme Court decision in which an unsigned Will was admitted to probate where the testator had been unable to sign it due to COVID-19 restrictions, and shows the contrasting technical approach of Ontario courts, which may lead to unfortunate outcomes (such as a testator unintentionally dying intestate). It will be interesting to see whether the substantial compliance amendments to s.21.1 of SLRA that came into force on January 1, 2022 will change the result in similar fact patterns.