Now, let’s have a look at a recent case in Canada where a man wrote his Will on a McDonald’s paper napkin.
The Case – Gust v Langan 2020 SKQB 42
In May 2015, Philip Langan was dining at a McDonald’s restaurant in Yorkton, Saskatchewan, Canada. Believing he was having a heart attack, Mr Langan quickly scribbled his children’s names onto a napkin, along with the instructions to “Split my property evenly“.
No identified witnesses were present when Mr Langan wrote on the napkin, nor was it signed by any other person. However, it was soon delivered to his daughter Sharon for safekeeping.
Mr Langan subsequently died on 30 December 2015.
One of Mr Langan’s children, Maryann Gust, disputed the validity of the napkin Will. Although she was named in the Will, she was not present when it was created and she held no other handwritten document to verify her father’s handwriting. Additionally, her name was misspelled as “Marann” on the napkin. Finally, she attested that her father told her in November 2015, four months after the incident at McDonald’s , that he wouldn’t create a Will because “he wanted us kids to fight like he had to”.
Three of Mr Langan’s other children – Ronald, Sharon and Philip Jr. – swore affidavits in support of the Will’s validity. Ronald and Sharon affirmed that the napkin Will was written in their father’s handwriting. They also disputed Ms Gust’s claim that their father never had a Will, and that their father wanted to instigate a fight between his children. Sharon and Philip Jr. swore that their father made statements including: “Sharon has my will, that napkin”, and “This is my will. I want you to keep this in case something happens”.
The Canadian court found that the napkin was a valid “holographic” Will, a type of informal Will that is handwritten and only signed by the testator.
Although no witnesses were identified (Ronald claimed some “other people” saw his father create the Will), the court was satisfied of Mr Langan’s intentions.
Finding a “clear testamentary intention“, the court noted:
- Mr Langan’s belief he was having a heart attack (a time when people consider estate planning);
- His delivery of the napkin to Sharon; and
- His statements about the napkin as being “my will“.
The fact Ms Gust did not respond to the evidence in Ronald, Sharon and Philip Jr.’s affidavits, filed several months after her own affidavit, was understood as Ms Gust implicitly accepting their evidence of Mr Langan’s testamentary intentions.
McDonald’s in Yorkton, Saskatchewan, Canada
What Can We Learn?
This case does have relevance in Australia. Succession laws in Australia/NSW are quite similar to those in Canada (see: Succession Act 2006 (NSW)). The approach of the courts when determining the validity of Informal Wills is also quite similar.
This case highlights the following:
1. The importance of having a properly-drafted, properly-witnessed Will.
Of course, writing on a napkin is better than nothing – if you’re having a heart attack. But imagine how simple this could’ve been if Mr Langan had gotten a lawyer to draft a proper Will for him!
2. The cost of having an informal Will.
We’ll never know whether Mr Langan really “wanted us kids to fight like he had to“.
However, his poorly-drafted napkin Will created unnecessary stress, legal costs and fighting among his beneficiary children. The validity of his Will was decided in March 2020, five years after he died.
And his beneficiaries were ‘lucky’ – informal Wills are not always valid (see: Cassie v Koumans  NSWSC 481).
3. The need to get your Estate Planning done, NOW!
Mr Langan was eating lunch, and then suddenly thought he was about to die. He wrote a Will quickly on a paper napkin. Fortunately, he survived.
We don’t know when we will die, or how we will die. It could happen suddenly, when we don’t have anything nearby to write our last wishes onto.
Don’t leave it to chance. Don’t add to the grief by dying intestate, or by creating a huge legal fight. Don’t waste your money and your loved ones’ time.
Martin Bullock Lawyers are experts in Estate-Planning. If you need a valid, properly-drafted Will, Power of Attorney or Appointment of Guardian, we can help. If you need advice, call Greg Martin or Jacqueline Wainwright on (02) 9687 9322.