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Handwritten will on napkin declared valid by Canadian court

Tuesday, 17 March, 2020

A will written by hand on a McDonald’s napkin has been declared legally valid by a Saskatchewan judge. The ruling gives an insight into the validity of “informal” holograph wills in the province (Gust v Langan, 2020 SKQB 42).

Philip Langan died in 2015, leaving only a napkin with his name and instructions to split his property evenly between his seven living children. One of the seven children challenged its validity as a will, questioning its authenticity as she was unable to confirm her father’s handwriting, and further, he had misspelled her name. Three of the children filed affidavits confirming that Philip had written the napkin.

The case, heard in the Court of Queen's Bench for Saskatchewan, is, however, largely academic: the family had agreed that the six surviving children of the seven named, as well as Philip’s grandchildren from his two deceased sons, would share the estate equally regardless of the court’s ruling on the validity of the will.

The ruling is, nonetheless, important, as under The Wills Act, 1996, holograph wills are recognized as valid. However, in his ruling Justice Layh pointed out that often they “are drawn so informally that the court is uncertain whether the author of the document intended to create a will.”

He pointed to the decision in Archer Estate (Re) (2005 SKQB 118 at para 9, 15 ETR (3d) 165), which found that “wherever reasonably possible” a court should permit probate of a document that “embodies the testamentary intentions of a deceased even though that document was not executed in compliance with the formal requirements of a proper will.” However, the decision in Archer also found that this should not extend to “speculating on the testamentary intentions of the deceased.”

From the sworn affidavits of three of the children, the testimony that Philip had referred to the napkin as his will, and the fact that at the time of writing it, he had thought he was having a heart attack, Layh concluded: “The court finds sufficient evidence has been presented to establish circumstances that augur for a finding that Mr Langan had the requisite testamentary intention to create a will. Without speculation, the court is satisfied that the document shows Mr Langan’s final wishes.”