Handwritten codicils to wills can be valid. But when suspicious circumstances exist, the onus shifts to the party seeking to prove the codicil. The proponent must prove, on a balance of probabilities, that the testator knew and approved the document and had testamentary capacity at signing.
The Ontario Court of Appeal’s decision in Schickedanz v. Schickedanz illustrates this burden in practice.
Elma Schickedanz signed a handwritten codicil on May 9, 2016, purporting to leave the family’s “home farm” to her daughter, Charlotte, instead of the equal division set out in Elma’s 2007 lawyer-drafted will. At her death, the home farm’s value was estimated at $20,000,000 and represented most of Elma’s wealth.
There was no dispute between the parties that the purported codicil met the formality requirements for a holograph (that is, handwritten) will. Suspicious circumstances can arise, however, from the making of the document. This can include the testator’s condition, or the presence of a significant beneficiary at the time of creation. The trial judge found suspicious circumstances tied to Elma’s knowledge and approval, and to capacity, shifting the burden to Charlotte to prove both requirements.
Charlotte, the sole beneficiary of the codicil, played an instrumental role: she discussed Elma’s wishes beforehand, retrieved the paper, reviewed the document, accompanied Elma to notarize it, and arranged for its safekeeping. Additionally, the codicil was prepared without any lawyer or advisors and without notifying Elma’s sons.
Health and cognition matter. When the codicil was executed, 85‑year‑old Elma had serious health issues, including a brain growth, fainting episodes, congestive heart failure, sciatica, anxiety, depression, memory loss, and mild cognitive impairment. Weeks later she was diagnosed with early dementia with repeating confusion. The day after signing, Elma told her son Arthur that she had “did something yesterday” she was “unsure about,” but affirmed that she and her late husband wanted to treat their children equally.
On these facts, the trial judge held that Charlotte failed to prove Elma’s knowledge and approval and failed to prove capacity. The judge concluded that the evidence did not show that Elma appreciated that the home farm constituted the bulk of her estate or that gifting it would upend her longstanding equal‑treatment intention. The Court of Appeal dismissed Charlotte’s appeal, holding there was ample evidence of suspicious circumstances and no legal error in the trial judge’s analysis.
Michael Crampton