All About Estates


The Queen’s Bench for Saskatchewan was recently asked (in the case of Gust vs. Langan et al., 2020 SKQB 42) whether a will handwritten on a paper napkin created by the deceased sometime before his death met the requirements of being a valid will under the relevant Act to permit it to be accepted as a valid holograph will.  The Court had to decide whether the will met the test of  “deliberate or fixed and final expression of intention as to the disposal of property upon death.”  noted by a fellow blogger recently as the test for holograph wills.

The Court noted that the document was undated, written in pen on a very thin, brown-coloured, paper restaurant napkin, and did not contain a witness signature. The Court heard evidence that it was apparently written by the deceased while in the restaurant and under the impression he was having a heart attack.

One the siblings stated that her father would often mention, “My daughter has my will, that napkin.” She also stated the handwriting on the napkin was her father’s. More precisely, she stated she was not present at the restaurant when her father “started writing on the napkin,” but she observed him signing his name after, when he gave the document to her and said, “This is my will…I want you to keep this in case something happens.”

On balance of the evidence, The Court found that the wording and circumstances surrounding the signing of the will demonstrated that it constituted a fixed and final expression of intention. The will was found to be valid.

Also, the Alberta Court of Queen’s Bench was asked in a case (Dalla Lana Estate, 2020 ABQB 135), to decide whether two 4” x 6” sticky notes described by the deceased as “changes to my earlier will”, written four days before his death and witnessed by one of his children (who became a beneficiary) , was a valid holograph will and in effect rewrote his entire “formal” will which was made approximately a decade earlier.

The Court noted that the two notes featured a combination of handwriting and printing, carefully laying out the intentions of the deceased. The Court found the notes to be thorough in nature as they appeared to address all his estate and address all of items, he wanted changed from his original will.

The Court concluded it was a valid holographic will. The Court also concluded that bequests to the individual who signed as witness to the will were not invalidated because a holograph will does not require witnesses at all. Under the relevant provincial law, gifts to the witness of a formal will are invalid.

I wonder how many more of these we will see particularly in the light of the current Covid-19 crisis.

Happy Reading and stay safe

About Steven Frye
Baker Tilly WM LLP is a leading, independent audit, tax, and business advisory firm based in Vancouver and Toronto, serving clients across Canada. Drawing on well-trained teams across a variety of disciplines, we ensure the alignment of our professional’s skills and experience with client requirements, resulting in exceptional service and business outcomes.


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