The Validity of a Printed Will
By Michael Schacter
Kaufman Laramée LLP
There is a quiet controversy in recent jurisprudence regarding the validity as a will of a document printed from a computer and then signed by the testator. The recent judgment of Archambault v. Dénommé, 2013 QCCS 1407, has added an interesting perspective to the debate. First, we present you with a brief overview of the issue.
According to article 726 C.C.Q., a holograph will must be “written entirely by the testator and signed by him without the use of any mechanical process”. At face value, this would seem to preclude the use of a computer to type and then print a will for signature.
However, article 714 C.C.Q. adds the following:
“A holograph will or a will made in the presence of witnesses that does not meet all 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.”
Last fall, two decisions on this subject were rendered with differing conclusions.
In Bellemore (Succession de), 2012 QCCS 4283, it was decided that a printed and signed will was invalid due to the fact that it did not respect the essential condition of being prepared by hand. This decision relied on the Court of Appeal’s reasoning in Paradis v. Groleau (200-09-000706-967, 1999-11-16), which found that a handwritten will drafted by a third person, but signed by the testator, was invalid.
Less than two months later, in Gendreau v. Laferrière, 2012 QCCS 5525, a printed will was confirmed by the Court due to the clear intention of the testator, despite it not meeting the essential criteria of either a holograph will or a will made in the presence of witnesses.
These two seemingly contradictory cases were analyzed by fellow blogger Karim Renno last November.
On March 13, 2013, the judgment in Archambault v. Dénommé brought another voice to the fray.
In the wake of the suicide of Mr. Daniel Dénommé, a printed and signed note was found on his person specifically detailing how he wished for his assets to be distributed.
The Honourable Martin Bédard, J.S.C., relying on the unequivocal intention of the deceased, put forward the following line of reasoning:
“ Je dois tenir compte de la réalité. Aujourd’hui, les gens n’écrivent pratiquement plus de documents à la main. La grande majorité des gens travaillent sur ordinateur.
 Les étudiants ne prennent plus de notes de cours à la main.
 Les gens ne s’écrivent plus de lettres, ils échangent des courriels.
 Tout se fait par ordinateur, c’est la nouvelle réalité.
 Rien ne permet de mettre en doute que le testament ait été rédigé par Daniel Dénommé. Au contraire, tout permet de croire que c’est le cas.
 L’article 714 C.c.Q. permet de déclarer valide un testament qui respecte l’essentiel des formalités, s’il représente de façon certaine et non équivoque les dernières volontés du défunt.
 Je suis convaincu que c’est le cas.”
Consequently, Justice Bédard probated the will. The full text of the decision is available here.
In light of these recent judgments of the Superior Court, it appears that the time has come for the Court of Appeal to weigh in once again. Since the 1999 decision of Paradis v. Groleau, the technological landscape has evolved by leaps and bounds and Justice Bédard is absolutely correct in pointing out that handwritten documents have virtually disappeared from everyday use.
There may be a valid distinction to be made between signing a will prepared by a third party (whether by hand or printed) versus a will typed by the testator himself. However, at face value, it would be impossible to determine who actually typed a will, thus underscoring the interest in requiring the document to be drafted by hand.
Although the Court of Appeal may have to eventually determine whether or not the prohibition of a mechanical process is an essential requirement of the holograph will, it does not appear as though this will occur in the foreseeable future, as none of the preceding judgments have been appealed from. Rather than leaving this question to the courts, it may be time for the National Assembly to look at modernizing the relevant provisions of the Civil Code.