“Section 6 of the Succession Law Reform Act, R.S.O. 1990, c. S. 26, provides that a testator may make a valid will, wholly by his or her own handwriting and signature, without formality, and without the presence, attestation or signature of a witness.
In Bennett v. Gray, 1958 CanLII 49 (SCC), [1958] S.C.R. 392, the Supreme Court of Canada said that to be a valid holographic will, the person propounding the document must satisfy the court that it contains “a deliberate or fixed and final expression of intention as to the disposal of property upon death” and that the propounder may rely on extrinsic evidence:
There is no controversy, either in the reasons for judgment in the Courts below, or between the parties, that under the authorities, a holographic paper is not testamentary unless it contains a deliberate or fixed and final expression of intention as to the disposal of property upon death, and that it is incumbent upon the party setting up the paper as testamentary to show, by the contents of the paper itself or by extrinsic evidence, that the paper is of that character and nature. (Bennett, at p. 396.)
Not every note written in hand before death will be found to be a will. It is necessary that the testator intends the document to be a testamentary document. According to Feeney’s Canadian Law of Wills (4th Edition) at p. 1.4, para. 1.7, “[a] testamentary gift occurs when the donor intends to make a gift that is effective only at the donor’s death and is revocable until then—the gift is said to be “dependent on death for its vigour and effect.’” (Atherton Estate, Re, 2006 CanLII 30580 (Ont. S.C.), at paras. 11-12.)”