This blog was co-authored by Latoya Brown, Associate and Elyse Mitchell, Student-at-Law
at Fasken LLP
Holograph wills and codicils are often viewed as a simple and inexpensive way to record testamentary wishes. In Ontario, a holograph will or codicil is valid if it is entirely in the testator’s handwriting and signed by the testator. That simplicity often makes holograph documents attractive.
The recent Ontario Court of Appeal decision, Schickedanz v. Schickedanz, 2026 ONCA 191, demonstrates that although a holograph codicil satisfies the formal requirements of the Succession Law Reform Act, it does not mean it will survive a challenge after the testator’s death. In some cases, the simplicity that makes holograph documents appealing is precisely what makes them vulnerable.
The case arose from a family dispute over a large farm property. In 2007, Elma Schickedanz and her late husband executed mirror wills, prepared with the assistance of a lawyer, that reflected an equal distribution of their assets among their five children. Years later, in 2016, Elma executed a handwritten codicil that purported to leave her most valuable asset, the home farm, solely to her daughter Charlotte. By the time of Elma’s death, the home farm was worth approximately $20 million and represented the vast majority of her estate. If the codicil was valid, it would fundamentally alter the distribution scheme reflected in the her existing estate plan and dramatically favour one child over the others.
Although the document satisfied the formal requirements for a holograph codicil, the circumstance of how the document came to be, questioned its’s validity. The evidence revealed that Charlotte had previously approached the lawyer who prepared Elma’s will and asked whether a codicil could be prepared transferring the farm to her. The lawyer declined and advised that any such change would have to come directly from Elma. No instructions were ever received from Elma, but years later, the handwritten codicil appeared, prepared without legal advice and without involvement from any of the family’s professional advisors.
The Court also noted Charlotte’s significant involvement in the events surrounding the codicil. She discussed her mother’s wishes with her before the document was written, provided the paper on which it was drafted, reviewed it after it was completed, accompanied her mother to have it notarized, and arranged for a copy to be stored with the existing will. None of these facts, standing alone, would necessarily invalidate a testamentary document. Together, however, they painted a picture that raised questions about how the codicil came into existence and whether Elma truly understood its effect.
Charlotte argued that the trial judge had effectively imposed too high a standard by requiring proof that Elma understood the value of the home farm. The Court of Appeal rejected that characterization and emphasized that a testator does not need an “encyclopedic” knowledge of their assets, nor do they need to know precise values. However, the Court of Appeal held that there was a crucial distinction between knowing the exact value of an asset and understanding its significance within one’s estate.
The trial judge had found there was insufficient evidence that Elma appreciated that the home farm represented the bulk of her estate. If she did not understand that fact, she may not have understood that gifting the farm to Charlotte would effectively result in a dramatically unequal distribution among her children. The Court of Appeal agreed with the trial judge that Charlotte had failed to prove that her mother knew what was in the purported codicil.
The capacity analysis followed a similar theme. By the time the codicil was executed, Elma was in her mid-eighties and experiencing significant health challenges. The evidence included memory issues, anxiety, mild cognitive impairment, episodes of confusion, and a later diagnosis of early dementia. Importantly, the Court was careful to note that the trial judge had not made a positive finding that Elma lacked capacity. Rather, the issue was whether those circumstances were sufficiently concerning to require closer scrutiny of the document and whether Charlotte could affirmatively establish capacity.
One piece of evidence appears to have been particularly powerful. The day after signing the codicil, Elma reportedly told one of her sons that she had done something the previous day that she was unsure about. When he explained that the document appeared to leave the farm to Charlotte, she responded that she and her husband loved all of their children equally and wanted to treat them equally. For the Court, this evidence was difficult to reconcile with a document that effectively gave most of the estate to one child. It supported the trial judge’s concerns both about Elma’s understanding of the codicil and her capacity to make such a significant testamentary change. The Court of Appeal concluded that “evidence of both her demeanour and the comment she made to [her son] the day after signing the purported codicil suggest that she may have been confused about what she did. This was enough in the context of the evidence as a whole to give rise to circumstances of suspicion, shift the onus to Charlotte, and to support a finding that she had failed to meet her onus”.[1]
Ultimately, the Court of Appeal upheld the trial judge’s conclusion that Charlotte had failed to discharge her burden on either knowledge and approval or testamentary capacity. As a result, the codicil was declared invalid and the appeal was dismissed.
The broader lesson from Schickedanz is that the hidden danger associated with holograph codicils is often the absence of evidence. When a lawyer drafts a will, there is typically a paper trail documenting instructions, discussions about family circumstances, explanations of legal consequences, and assessments of capacity. Years later, that evidence may become critical. A holograph codicil often leaves none of that behind.
In Schickedanz, the codicil complied with the formal requirements for a holograph document. What it lacked were the safeguards that would allow a court, years after Elma’s death, to confidently conclude that the document represented her fully informed and capable testamentary intentions. Ironically, the very simplicity that makes holograph codicils attractive can also make them extraordinarily vulnerable when challenged.
[1] Schickedanz v. Schickedanz, 2026 ONCA 191 at para 27
