Cecil George Harris took out his pocket knife and scratched out: “In case I die in this mess, I leave all to the wife” into the paint of the fender, seen here. That became his will and it held up in court.
As he lay dying while pinned under this tractor, Cecil George Harris took out his pocket knife and scratched out: “In case I die in this mess, I leave all to the wife” into the paint of the fender.
And he signed it.
It was 1948 and the Saskatchewan wheat farmer did later die of his injuries. But the fender and knife survive in the University of Saskatchewan College of Law as a simple example of how consideration of those you leave behind, even in extraordinary circumstances, can make a difference.
Harris covered the necessary basics. A hand-written or holographic will needs to be written by hand without the help of any mechanical processes like a typewriter or computer and it needs to be signed.
Anticipating possible challenges upon the discovery of the will given that it was so unique, his lawyer quickly set about confirming Harris's handwriting on the fender through the strength of affidavits from eight friends and business associates in Saskatchewan’s McGee district, near Rosetown. He also secured medical confirmation that Harris did, indeed, die as a result of his tractor injuries, given the condition Harris scratched out: “In case I die in this mess.” The knife, which Harris used as a pen, was also procured.
He proved where there’s a will, there’s a way and the fender will was soon declared valid by the court.
The Harris story was widely reported and appeared as a Ripley’s Believe It or Not! cartoon feature in a U.S. paper. “Harris’s final testament stands among holograph wills as an example of brevity and lucidity,” concluded Geoff Ellwand in a lengthy examination of the story behind the Harris will for the Saskatchewan Law Review in 2014.
The purpose of a will
Wills are generally created with the intent of taking into consideration those we leave behind. Harris’s is brilliant in its brevity and clarity, although his lawyer went to great lengths to ensure it would hold up in court. Unclear instructions can leave room for interpretation and disputes and can often expose the executor to litigation.
Having worked as an inheritance lawyer for more than three decades, Lynne Butler has seen her share of conflicts, fighting and court challenges. Much of it, she says, is avoidable. And, for the most part, it is the executor who absorbs the burden of the problems.
“People hurt each other so much in estates. I find it astonishing how people treat each other,” says the lawyer who works in St. John’s, N.L. “It just gets really ugly. There’s no need to get personal about it, but they do.”
Part of the problem, adds Scot Dalton, CEO of ERAssure, which provides executor insurance, is that the person appointed as executor is often a trusted family member, not necessarily someone with related qualifications. The role of an executor is not just a family obligation, it’s a legal one that could be time-consuming and comes with risks.
“Doing estate administration is like running a business… you should also be looking at the ones with some sort of qualification,” Dalton says, adding that the task is usually more onerous and lengthier than the involved parties anticipate.
Avoiding lightning rods
The trick to avoiding pitfalls and challenges lies in the estate and will planning stages. An executor left to interpret the intent of an unclear will or one with discrepancies can end up being the lightning rod for resulting disputes and litigation.
An executor may also find the work, which can easily drag on beyond two or three years, to be overwhelming and may seek compensation from the estate, often to the chagrin of the beneficiaries, again leading to potential challenges. A line about compensation in the will leaves no room for argument.
A common stumbling block is a cottage left for all the children to share. Butler suggests adding an option in the will allowing one of the beneficiaries to purchase it using their share of the estate as their downpayment to help ease the transition.
A joint bank account or a loan could also be a problem area. A will that stipulates a loan made to one of the children, for instance, will be deducted from that child’s share of the inheritance can clarify the testator’s intent.
Increasingly, Butler includes household items in the will — again as a way to avoid confusion later.
But Mark O’Farrell, CEO of the Institute of Certified Executor Advisors, suggests if there’s something in the house that is no longer being used, consider giving it away or getting rid of it now.
“Think methodically about how you’re going to do a will,” says O’Farrell, whose organization provides education and resources related to executors. “Understanding the big picture before you write the will is key.”
He suggests considering everything from the valuables in the house to various other assets and real estate. Take care of what can be done in advance and reduce what will fall into the estate. Start simple by going through the house and clearing out things that you’ve collected over the years that no longer serve a purpose, such as that figurine on the shelf or the family’s old silver tea set, he suggests. Gifting these personal items in advance not only hands over your valuables to those you’d like to have them, but will also make it easier when the time comes to downsize your home.
If you have trusts, make sure they’re up to date and properly funded. If you have insurance and other financial products, make sure the beneficiaries are up to date.
If you’re going to do your own holographic will, it needs to be handwritten and follow the provincial requirements. If it is later deemed to be invalid, it could create quite a mess.
Harris's will demonstrates that extraordinary and simple wills can stand up, but it also demonstrates that many people are simply not prepared. Although injured and at the 11th hour, Harris was still able to ensure he left instructions, however brief.
One stumbling block for some people who do take the time to consider their will is not communicating what’s in it. Let the executor know you’ve assigned the job to them. And then show them the will while it’s being drafted. That allows them the chance to ask questions or even suggest making changes so it all remains clear.
In addition to the will, however, there are also life insurance policies, RRIFs, RRSPs as well as tax considerations, property, businesses and perhaps offspring with disabilities to consider. Addressing all those issues will lessen the executor’s workload.
“All those things have to work together like a puzzle. The will should take that into consideration,” says Butler, who typically consults with the testator for an hour to cover the points to be addressed in the will. “That’s my main focus: How are you going to put this together so that when you’re gone and you’re not here to talk about it, how’s everyone going to manage it? To me, it begins with the will because the executor is bound to do what’s in the will. So the better the will, the better it’s going to work out.”
Harris’s fender was kept at the courthouse in Kerrobert, Sask., for almost 50 years, until the courthouse was closed in 1997. It, along with his pocketknife, were turned over to the University of Saskatchewan’s College of Law in Saskatoon where they have been used as teaching tools.