We know that a suicide note can constitute a valid will in British Columbia, and possibly in Ontario. However, can a will written on a paper napkin from a McDonald’s restaurant be a valid will in Saskatchewan? This was interesting issue was addressed in Gust v. Langan.
Six months before he passed, testator Philip Langan was dining at a McDonald’s restaurant in May or June of 2015 when he thought he was having a heart attack. Believing that he was in immediate jeopardy, he quickly grabbed what was available in the vicinity, a thin brown-coloured paper napkin, and wrote down the names of some of his children and grandchildren, plus the direction to “split my property evenly” and signed, “Dad Philip Langan”.
This paper napkin will was not dated, and did not contain a witness signature. Under Saskatchewan’s The Wills Act, these are formal requirements for a valid holographic will. After the scare, this napkin was given to his daughter Sharon, who then gave it to his son Ronald. Ronald passed it to his lawyer for safe keeping. Philip never did make another will before passing in the winter of 2015.
The Law Applied to The Facts
Section 37 of The Wills Act of Saskatchewan is the substantial compliance section. This section would allow a court to save a will from invalidity due to a lack of strict compliance with legislative requirements such as the signature of a witness.
The central issue before Layh J. was whether in this circumstance, section 37 operated to validate that paper napkin as a will.
Citing the Saskatchewan Court of Appeal case of Kube v. Kube, Layh J. identified the two requirements for section 37. First, the court must be satisfied on a balance of probabilities that the disputed document expresses the testamentary intention of the deceased. Secondly, the court must determine if the document truly represents a deceased’s final wishes.
In the case before him, Layh J. determined that both requirements were met, therefore, section 37 has transformed this paper napkin into a valid will.
Speaking to the first requirement, the court accepted the evidence of three of Philip’s children indicating that Philip did believe he was having a heart attack at the time when he wrote on the napkin. The court inferred that in these urgent circumstances, his mind would reasonably have turned to the question of estate planning, especially since he never had a prior will.
Speaking to the second requirement, the court preferred the affidavit evidence of three of Philip’s children, who were unanimous in agreeing that other restaurant patrons had seen Philip writing on this napkin, and that one of the children, Sharon, was given this napkin for safe-keeping, and was told by Philip that “this [napkin] is my will[.] I want you to keep this in case something happens”. There were subsequent references to the napkin will in the family as well.
One of Philip’s children, Maryann, gave affidavit evidence in support of her skepticism that the will was neither written by her father, nor was created in the circumstances of a heart attack. The court took note of the fact that Maryann swore her affidavit months before her three siblings.
Upon seeing that her three siblings were unanimous in their evidence, she did not create a responding affidavit, and therefore, the court pondered whether her silence may have been an implicit acceptance of the version of events outlined by her three siblings. The other affidavits may have convinced her that the will did demonstrate Philip’s testamentary intention and final wishes. However, even if not, the court still preferred the evidence of the other three children of Philip.
In conclusion, Layh J. recognized that in this case, the court’s decision is largely an academic exercise. This is because the family was in agreement that everything should be split evenly, in nine equal shares amongst the children and grandchildren of Philip, regardless of the napkin will’s validity. They had also agreed that some grand-children of children who had predeceased Philip would be included in the asset distribution, even though they were not included on the napkin will. In the case of invalidity, Saskatchewan’s Intestate Succession Act would have led to the same nine-way split result.
Even if this decision was largely academic, it was not an exercise without merit. Interesting cases like this one are a living illustration of the fact that novel scenarios drive the evolution of our laws. While legislature attempts to account for all possible scenarios in the initial creation of laws, this is never possible. It is up to our common law to further refine the application of laws through cases like this one.
While this decision did not make a material difference to the Langan family, its very existence makes a difference to the existing body of case law and the overall legal landscape surrounding interpretation of section 37.
In the end, it is reassuring to know that if an emergency was really to take place, such as an actual heart attack, Saskatchewan courts would likely use its powers under section 37 to enable and respect the wishes of a testator, even if a will were created without strict adherence to formal requirements.
Unlike Saskatchewan or British Columbia, Ontario’s equivalent legislation does not empower our courts with the same ability to do away with strict compliance in exceptional circumstances. This case is perhaps a great illustration of a scenario where our system might benefit from having access to this power.